Home | Databases | WorldLII | Search | Feedback New Zealand Law Commission - Study Papers

He Poutama [2023] NZLCSP 24; He Poutama [2023] NZLCSP 24

Last Updated: 21 September 2023

Mahuru | September 2023 Te Whanganui-a-Tara, Aotearoa Wellington, New Zealand

Pūrongo Rangahau | Study Paper 24

He Poutama

Te Aka Matua o te Ture | Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of Aotearoa New Zealand. Its purpose is to help achieve law that is just, principled and accessible and that reflects the values and aspirations of the people of Aotearoa New Zealand.

Te Aka Matua in the Commission’s Māori name refers to the parent vine that Tāwhaki used to climb up to the heavens. At the foot of the ascent, he and his brother Karihi find their grandmother Whaitiri, who guards the vines that form the pathway into the sky.

Karihi tries to climb the vines first but makes the error of climbing up the aka taepa or hanging vine. He is blown violently around by the winds of heaven and falls to his death. Following Whaitiri’s advice, Tāwhaki climbs the aka matua or parent vine, reaches the heavens and receives the three baskets of knowledge.

Kia whanake ngā ture o Aotearoa mā te arotake motuhake

Better law for Aotearoa New Zealand through independent review

The Commissioners who approved this Study Paper are:

Amokura Kawharu – Tumu Whakarae | President Claudia Geiringer – Kaikōmihana | Commissioner

Geof Shirtcliffe – Tumu Whakarae Tuarua | Deputy President The Hon Justice Christian Whata – Kaikōmihana | Commissioner

Kei te pātengi raraunga o Te Puna Mātauranga o Aotearoa te whakarārangi o tēnei pukapuka.

A catalogue record for this title is available from the National Library of New Zealand. ISBN 978-1-99-115994-6 (Print)

ISBN 978-1-99-115995-3 (Online)

ISSN 1174-9776 (Print)

ISSN 1177-7125 (Online)

This title may be cited as NZLC SP24. This title is available on the internet at the website of Te Aka Matua o te Ture | Law Commission: www.lawcom.govt.nz

Graphic illustrations used in this Study Paper have been provided by The Fount.

Copyright © 2023 Te Aka Matua o te Ture | Law Commission.

This work is licensed under the Creative Commons Attribution 4.0 International licence. In essence, you are free to copy, distribute and adapt the work, as long as you attribute the work to Te Aka Matua o te Ture | Law Commission and abide by other licence terms. To view a copy of this licence, visit https://creativecommons.org/licenses/by/4.0

TE AKA MATUA O TE TURE | LAW COMMISSION HE MIHI iii

He mihi

Rukutia, rukutia!

Rukutia ngā kākaho o tēnei whare hei rerenga tikanga kia ū, kia mau! Rukutia ngā kaho o tēnei whare hei papa mō te ture kia ū, kia mau!

Rukutia ngā pīngao hei tuitui, hei whakahono, hei whakakotahi kia ū, kia mau! Rukutia e Tāne kia ū, kia mau! Kei taea koe e hau nui, e hau roa, e hau pūkerikeri, E ngā hau āwhiowhio, e ngā ua māturuturu, e ngā whiunga o te wā.

Rukutia tēnei whakaruruhau kia ū, kia mau, itaita mau tonu!

Ko tō manawa e Tāne, ko tōku manawa e Tāne ka whakairihia Whano, whano, hara mai te toki! Haumi e! Hui e! Tāiki e!

Whāia te ara tapuwae o Tāne ki a Ranginui e tū nei. Waewae takamiria ngā huarahi i runga i a Papatūānuku e takoto nei. He ara pū, he ara weu, he ara rito, he ara take, he ara pūkenga, he ara wānanga, he ara taunuku, he ara taurangi, he ara whakaputa i te ira tangata, e Rangi, e Papa, e te ira atua, ki te whaiao, ki te ao mārama.

E koutou, e te tini whāioio, e te mano tuauriuri, e ngā whakapakokotanga kei ngā whare whakairo, tēnei mātau ko ā koutou nei uri e tuohu tonu ana ki tā koutou i waiho mai hei arataki i a mātau. Tāpiri hoki ki a koutou e te hunga kua riro ki te pō nōna tata nei, mai i te raki ki te tonga, mai i te rāwhiti ki te uru. Haruru tonu nei ō koutou kupu, haruru tonu nei ō koutou tapuwae i muri nei. Taiahaha! Taiahaha!

Ko te akaaka o te rangi ki a rātau, ko te akaaka o te whenua ki a tātau, e te hunga ora, e takatū nei i te mata o te whenua. Mauriora ki a tātau e hika mā.

Mokori anō kia rere a mihi ki ngā ruānuku, ki ngā ruahine, ki ngā pūkenga, ki ngā mātanga, ki ngā ngaio, ki a koutou katoa i taunaki mai i te kaupapa nei o He Poutama.

Mataatua waka, Mataatua ihi, Mataatua wehi! Ka wana katoa tēnei kaupapa i te ninihitanga o te moana o whakaaro i rukuhia e koutou. E kore e mutu ngā mihi ki a Tā Hirini Moko Mead koutou ko Tā Pou Temara, ko Taiarahia Black, ko Turuhira Hare, ko Hiria Hape, ko Waitangi Black, ko Mera Penehira, ko Puhi Iopata, ko Haturini McGarvey, ko Kaiwhakawā Layne Harvey, ko Wiremu Doherty, ko ngā ringaringa me ngā waewae hoki o Te Whare Wānanga o Awanuiārangi - mei kore koutou i tiki ai ngā kete mātauranga i ngā pakitara o ngā pātaka iringa kupu, iringa kōrero. Āe, he tipua, he taniwha!

Tēnā koutou e ngā tūī o te wao tapu nui, e tuitui nei i te reo, i ngā tikanga, i ngā whakaaro hōhonu. Ko Ruakere Hond koutou ko Rikirangi Gage, ko Tihi Puanaki, ko Hone Sadler, ko Ken Kennedy, ko Hauata Palmer. Nā koutou i tuitui i runga, i raro, i roto, i waho. Tuituiā!

E te hunga matatau ki te ao o te ture, kei te hira rawa atu te mihi ki a koutou, ki a Horiana Irwin- Easthope koutou ko Natalie Coates, ko Whāia Legal, ko Kāhui Legal hoki. Ka mihi hoki ki a Nicole Roughan koutou ko Claire Charters, ko Max Harris, ko Kingi Snelgar, ko Sebastian Hartley. Tēnā hoki koutou e ngā mema o te rōpū tohutohu ā-roto o Te Aka Matua o Te Ture, arā, ko David V Williams koutou ko Māmari Stephens, ko Carwyn Jones, ko Tai Ahu. He manu tāiko, he kanohi hōmiromiro koutou.

E ngā whatukura, e ngā māreikura hoki o te rōpū tohutohu mātanga, me mihi rawa ka tika ki a koutou, ki a Tā Edward Taihakurei Durie koutou ko Robert Joseph, ko Annette Sykes, ko Jacinta Ruru, ko Paora Tapihana, ko Kerensa Johnston, ko Tania Hopmans hoki. Nō mātau te hōnore nui mō tā koutou i tautoko mai ai.

Tēnā koutou e te puna mātauranga o te kōmiti takawaenga Māori, ko Kaiwhakawā Mātāmua Joseph Williams koutou ko Kaiwhakawā Caren Fox, ko Te Ripowai Higgins, ko Jason Ake, ko Kaiwhakawā Denise Clark, ko Liz Mellish, ko Kaiwhakawā Damian Stone, ko Baden Vertongen hoki. Ko tā te rangatira kai he kōrero; ko tā te rangatira mahi he akiaki.

E ngā iwi huri noa i te motu, mai i Te Tairāwhiti ki te Taihauāuru, mai i Te Taitokerau ki Te Pane o Te Motu, whakawhiti atu i Moana Raukawakawa ki Te Waipounamu, toro atu rā ki Rēkohu- Wharekauri, tēnā tahuri mai ki tēnei pūrongo me ngā kōrero kei roto kia noho hei whakaarotanga, hei kōrerotanga, hei mea wānanga hoki mā koutou, mā tātau.

E rua pea ngā kōrero ka noho hei tūāpapa mō te pūrongo nei o He Poutama, hei tōna pānuitanga. Tuatahi atu, ka tīkina i ngā wānanga tawhito o mua tēnei whakataukī, arā, nā te hinengaro te whakaaro, nā te whakaaro te kōrero, nā te kōrero te wānanga, nā te wānanga ka poua he tikanga. He tikanga ārahi, he tikanga arataki hoki i ngā matapakinga mō tēnei taniwha ko te ture.

Ko te tuarua o ngā kōrero e hāngai ana ki te kaupapa o tēnei pūrongo, ‘mā te ture anō te ture e patu’. Heoi anō, mā te rapu i ngā ōritenga, i ngā hononga, i ngā rerekētanga o te tikanga me te ture e whai māramatanga ai tātau ki te noho tahi, aha rānei, o ēnei mea whakahirahira i roto i ngā mahi o ia rā o ngāi tāua te tangata.

Nō reira, tūramatia ngākau o tama i te ao mārama, pūtake runga, pūtake raro, pūtake ira pou tangata whakaputa atu ki te whaiao, ki te ao mārama. Haumi e! Hui e! Tāiki e!

TE AKA MATUA O TE TURE | LAW COMMISSION FOREWORD v

Foreword

In 2001, Te Aka Matua o te Ture | Law Commission published its Study Paper Māori Custom and Values in New Zealand Law to examine the impact of tikanga on state law and consider ideas for future state law reform projects that might give effect to tikanga. The Study Paper has had an enduring influence on the consideration of tikanga in both legal and policy contexts and remains one of our most frequently cited publications.

As we note in the Introduction, since 2001 there have been many developments in the ways that tikanga and state law intersect. Tikanga is increasingly being woven into statute and the common law while, at the same time, gaining wider recognition within state law as being an independent source of rights and obligations. Yet tikanga is not well understood outside of Māori communities. The breadth and depth of tikanga is often overlooked and misunderstood. This has potential implications both for the integrity of tikanga and the coherent development of state law.

In October 2021 the Minister of Justice asked the Commission to review the role of tikanga concepts in state law. We identified two main goals. One was to provide an account of what tikanga is. The second was to address how tikanga and state law might best engage.

In approaching the first goal, we have been acutely conscious of the immense significance of tikanga to Māori. We sought the assistance of pūkenga (experts) to guide us. Their directive was clear — any account of tikanga must occur from “the inside”, grounded in mātauranga (Māori knowledge). Early in the project, we also identified that mainstream consideration of the legal dimensions of tikanga was sparse. This paper attempts to fill this gap.

In approaching the second goal, we outline the evolution of state law as it relates to tikanga. This then sets the scene for the final part of our paper, in which we provide guidance on how state actors might engage with tikanga in a way that maintains the integrity of both tikanga and state law.

While much work is still to be done, we are hopeful the paper will provide a sound basis for future interaction between tikanga and state law.

In our opening mihi we express our deep gratitude to the many people from outside of the Commission who have contributed their expertise to this project. I also acknowledge Justice Christian Whata’s leadership of the project and thank his team of advisers and clerks who have worked on this paper at different times during the project’s lifetime. I wish to thank, in particular, Tāneora Fraser, Morgan Dalton-Mill, Briar Peat, Claire Browning and Caitlin Hollings. I finally wish to acknowledge Dame Joan Metge for her enduring support of our work in this area. Dame Joan contributed to our 2001 Study Paper, and, for this one too, has been an invaluable sounding board.

Amokura Kawharu

Tumu Whakarae | President

Contents

APPENDIX 1: TIKANGA

APPENDIX 2: KEI RARO I NGĀ TARUTARU, KO NGĀ TUHINGA O NGĀ TUPUNA | BENEATH THE HERBS AND PLANTS ARE THE WRITINGS OF THE ANCESTORS

APPENDIX 3: INTERLEGALITY, INTERDEPENDENCE AND INDEPENDENCE: FRAMING RELATIONS OF TIKANGA AND STATE LAW IN AOTEAROA NEW ZEALAND

APPENDIX 4: TIMELINE OF STATUTORY AND COMMON LAW ENGAGEMENT WITH TIKANGA

CHAPTER 1

Introduction

• 1.1 In 2001, Te Aka Matua o te Ture | Law Commission (the Commission) published Māori Custom and Values in New Zealand Law, a study paper focused on tikanga. The Study Paper reflected on how Māori custom and values can influence the law and discussed ideas for future law reform to “give effect to Māori values in the laws of New Zealand”. 1 As the Commission said:2

If society is truly to give effect to the promise of the Treaty of Waitangi to provide a secure place for Māori values within New Zealand society, then the commitment must be total. It must involve a real endeavour to understand what tikanga Māori is, how it is practised and applied, and how integral it is to the social, economic, cultural and political development of Māori, still encapsulated within a dominant culture in New Zealand society.

However, it is critical that Māori also develop proposals which not only identify the differences between tikanga and the existing legal system, but also seek to find some common ground so that Māori development is not isolated from the rest of society.

The differences do not need to be seen as overwhelming. Māori and the courts each have a love of law, precedent and forebears, and these are commonalities that can be built upon.

• 1.2 Since then, there have been many developments in the way that tikanga is addressed by state law.3 Tikanga concepts are prevalent in legislation. Tikanga “has been and will continue to be recognised” in the development of Aotearoa New Zealand’s common law in cases where it is relevant.4 Tikanga has been judicially described as the first law of

¹ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 1.

² Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 95–96.

3. See generally: Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1; Arnu Turvey “Te ao Māori in a ‘sympathetic’ legal regime: the use of Māori concepts in legislation (2009) 40 Victoria University of Wellington Law Review 531; Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Victoria University of Wellington, 2012); Natalie Coates “The recognition of tikanga in the common law of New Zealand” [2015] 1 New Zealand Law Review 1;

Christian Whata “Biculturalism and the law: the i, the kua and the ka” [2018] WkoLawRw 3; (2018) 26 Waikato Law Review 24. For critical analyses of the treatment of tikanga in Aotearoa New Zealand law see: Annette Sykes “The myth of tikanga in the Pākehā law” (2021) 8 Te Tai Haruru Journal of Māori and Indigenous Issues 7; Mihiata Pirini and Anna High “Dignity and mana in the ‘third law’ of Aotearoa New Zealand” (2021) 29 New Zealand Universities Law Review 623; Natalie Coates “The rise of tikanga Māori and te Tiriti o Waitangi jurisprudence” (forthcoming); Sarah Down and David V Williams “Building the foundations of tikanga jurisprudence” (2022) 29 Canterbury Law Review 27.

4. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [19]; and see generally Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142; Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801; Proprietors of Wakatu v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423; Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116; Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368; Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733; Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277; Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA).

Aotearoa New Zealand,5 a “free-standing legal framework”,6 and a “third source of law”.7 The largest cohort of courts, Te Kōti ā Rohe | District Court, has begun a process of incorporating tikanga into the fabric of its operation.8

• 1.3 In consequence, demands have become pressing for legal and policy practitioners to engage more authentically with tikanga. Tikanga is still not well understood outside of the Māori communities where it is practised and lived, raising many questions. What is tikanga? Where do we find it? To whom does tikanga apply? As state law and tikanga engage, how and where are proper boundaries set — and by whom? How will risks and challenges be managed, enabling these systems to interact well? Our work has been done in a context where engagement between tikanga and state law is actively occurring, heightening the urgency.
• 1.4 Given these pressures, paths forward are needed to guide those approaching tikanga and assure all concerned that state law and tikanga are able to engage with one another with integrity. These two systems are already interacting. In this Study Paper, we have taken the view that there is little utility in the Commission readdressing whether or why state law and tikanga should engage. Instead, we have focused primarily on identifying ways in which they may properly do so, that are respectful of both systems’ parameters. The Study Paper’s purpose is to offer guiding frameworks that will enable the coherence and integrity of both tikanga and state law to be maintained. To legitimately address tikanga, an authentic understanding of it is also needed. The Study Paper aims to build understanding of tikanga that is both grounded in mātauranga (Māori knowledge) and connected with the law.

TIKANGA: OUR STARTING POINT

• 1.5 As Tā Edward Taihakurei Durie says, tikanga “is the set of values, principles, understandings, practices, norms and mechanisms from which a person or community can determine the correct action in te ao Māori”.9 Tikanga has long been recognised as having “the character and authority of law” and continues to shape and regulate the lives of Māori as it always has.10 Some aspects of tikanga are already a part of state law as a

⁵ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [22].

⁶ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [355].

⁷ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [111].

⁸ District Court of New Zealand “Transformative Te Ao Mārama model announced for District Court” (11 November 2020)

<www.districtcourts.govt.nz>.

9. E T Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449 at 452. For academic writing on the definition of tikanga see Te Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Māori in Relation to Reform of the Law of Succession (NZLC MP6, 1996); Moana Jackson “Where does sovereignty lie?” in Colin James (ed) Building the Constitution (Institute of Policy Studies, Wellington, 2000) at 196; Ani Mikaere “The Treaty of Waitangi and recognition of tikanga Māori” in Michael Belgrave, Merata Kawharu and David V Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (Oxford University Press, Auckland, 2005) 330; Robert Joseph “Recreating legal space for the first law of Aotearoa-New Zealand” [2009] WkoLawRw 5; (2009) 17 Waikato Law Review 74.
10. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [22]; and see Dispatch from Lord John Russell to Governor Hobson, 9 December 1840 in “Correspondence respecting the colonization of New Zealand” Great Britain Parliamentary Papers relating to New Zealand, No 17 at 27.

result of being incorporated, as described above, by courts through the common law and by Parliament in legislation.11

• 1.6 At the same time, tikanga scholars acknowledge the “immense” ambit of tikanga, encompassing philosophical, ethical and social frameworks, processes and norms.12 As Dr Carwyn Jones for instance considers, tikanga has aspects of ritual and custom and spiritual and socio-political dimensions that go far beyond the legal domain, as well as being Māori legal knowledge and Māori legal tradition.13 Distinguished Professor Hirini Moko Mead describes the importance of precedent and procedure, saying that tikanga provides “procedures to be followed in conducting the affairs of a group or an individual” that are “established by precedents through time ... validated by usually more than one generation”. He also says that:14

Tikanga are tools of thought and understanding. They are packages of ideas which help to organise behaviour and provide some predictability in how certain activities are carried out. They provide templates and frameworks to guide our actions and help steer us through some huge gatherings of people and some tense moments in our ceremonial life. They help us to differentiate between right and wrong with built-in ethical rules that must be observed. Sometimes tikanga help us survive.

• 1.7 When addressing tikanga in this Study Paper, we accordingly have preferred to use the word “tikanga” over other choices such as “Māori law”.15 The label “law” is unduly narrow, even while tikanga without doubt has legal quality. Reference to “Māori” in the phrase “Māori law” also tends to mask the reality of localised and variable expressions of tikanga among iwi, hapū, marae, whānau and other hapori Māori (“hapori” meaning section of a kinship group, society or community). For similar reasons, we do not use the terms “Māori custom law” or “custom law” — although, as will be explained in Parts Two and Three,

¹¹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [19].

12. Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 1; E T Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449 at 452; Joseph Williams “He aha te tikanga Maori” (unpublished paper for Te Aka Matua o te Ture | Law Commission, 1998) at 2: “[t]ikanga Maori is essentially the Maori way of doing things — from the very mundane to the most sacred or important fields of human endeavour”; David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 8; Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 23.
13. Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 23.
14. Hirini Moko Mead “The nature of tikanga” (paper presented to Mai i te Ata Hāpara conference, Te Wānanga o Raukawa, Ōtaki, 11–13 August 2000) at 3–4; see Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 16; and see generally Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016).
15. See for example usage of “Māori law” to denote tikanga by Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree: Phase One — Strengthening the Ability for Māori Law to Become a Firm Foundational Component of a Legal Education in Aotearoa New Zealand (Ngā Pae o te Māramatanga, supported by the Michael and Suzanne Borrin Foundation, August 2020) at 7, also describing “Māori law” as the first law of Aotearoa; Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 32; and see originally E T Durie “Custom law: address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 Victoria University of Wellington Law Review 325 at 326; E T Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449 at 451.

custom law is a phrase accurately used to describe one common law category of tikanga recognition.16 In this Study Paper, we simply call tikanga: tikanga.

TIKANGA AND MĀORI SOCIETY

• 1.8 Tikanga is lived and practised every day on the more than 700 marae spanning the length and breadth of Aotearoa New Zealand. Tikanga is also well established in other places: in iwi and hapū corporate entities, in Māori incorporations and trusts, in urban Māori authorities, in homes and businesses, in public agencies and institutions such as local authorities, schools and hospitals, and now in the courts. Some understanding of the Māori communities that tikanga serves contributes to understanding tikanga. Although tikanga is widely found today, it remains particularly important to appreciate the extent to which the roots of tikanga hold fast to their marae, hapū and whakapapa-connected origins, even as the outward forms of Māori society change.
• 1.9 The Commission in its 2001 Study Paper explained the principal traditional units of Māori society, focusing on whānau, hapū, iwi and waka:17

(a) Whānau, the basic social unit of Māori society, refers to both extended family and birth.18

(b) Hapū, a group bound by their descent from a common ancestor for whom the groups are named, are summarised by Durie as “groups large enough to be effective for such purposes as war, gift exchange, hosting and harvesting resources”.19 Political power was located primarily at the hapū level in pre-contact Māori society.20

(c) Iwi, a term also meaning “bones”, identifies the wider district or sometimes regionally based kin group. During the nineteenth century, “iwi” became more regularly used to mean the several ancestrally connected hapū of a region.21

16. Compare Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 1–2 and 15. See particularly: custom law may be used both “to describe the body of rules developed by indigenous societies to govern themselves” and “in a legalistic and narrow manner to refer to ... indigenous or aboriginal laws and customs that have met particular legal tests and thus are enforceable in the courts” (at 1) and “tikanga” is the closest Māori equivalent to concepts of both “law” and “custom” (at 15).

¹⁷ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 41–44.

18. Joan Metge New Growth from Old: The Whanau in the Modern World (Victoria University Press, Wellington, 1995) at 291.
19. E T Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449 at 450; E T Durie “Custom law: address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 Victoria University of Wellington Law Review 325 at 327–328; Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 41–44.
20. E T Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449 at 450; E T Durie “Custom law: address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 Victoria University of Wellington Law Review 325 at 327–328; Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 41–44; Natalie Coates and Horiana Irwin-Easthope “Kei raro i ngā tarutaru, ko ngā tuhinga o ngā tupuna | Beneath the herbs and plants are the writings of the ancestors: tikanga as expressed in evidence presented in legal proceedings” (paper prepared for Te Aka Matua o Te Ture | Law Commission, 2023) from [6.21]. Coates and Irwin-Easthope’s paper is published in Appendix 2 and subsequent references to it in this chapter are abbreviated: Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2.
21. Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 from [6.21]. As Durie considers, “iwi” may also be a term extending to unrelated hapū or individuals when several hapū embarked on a common venture: see Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.44].

(d) Waka, the Māori word for canoe, refers to the descendants of one of the migration canoes, usually a collection of iwi and hapū claiming descent from the captain or crew of the waka.22

• 1.10 Some have viewed such descriptions of Māori society as “simplistic and incomplete” and find them mistaken in suggesting that “the social units in Māori society were static, that the tribal polities were immutable and that kinship was the ‘only’ basis for association”.23 However, the Reverend Māori Marsden summarised the importance of these groups, each deriving from kinship and blood relations:24

Each individual was conditioned to regard his social grouping to which he belonged as an organism rather than organisation. In other words, he was a member of an organ with a body sharing a common life. That was the basic thesis on which the Māori social structures were founded.

• 1.11 As Durie further says, the sense of kinship embraced all life forms:25

... Maori saw themselves not as masters of the environment but as members of it. The environment owed its origins to the union of Rangi, the sky, and Papatuanuku, the earth mother, and the activities of their descendant deities who control all natural resources and phenomena. The Maori forebears are siblings to these deities. Maori thus relate by whakapapa (genealogy) to all life forms and natural resources.

• 1.12 Māori society and life were also characterised by dynamic change and pragmatism, as they continue to be.26 Kāinga or village communities would form for reasons less concerned with whakapapa (genealogical connection) than mutual advantage and survival.27 Hapū would frequently form and reform as social and political circumstances required.28 Alliances were entered into and dissolved just as quickly.29 Māori society was therefore never static, and this natural capacity to evolve was vital during the contact period of the nineteenth century given the grave impacts of warfare, disease and land loss. It is a period characterised by the increased prominence of larger hapū aggregations

²² Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 42.

23. Ranginui Walker First affidavit, 28 January 1998 at [4.1a], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.64].
24. Māori Marsden Statement of evidence, #F25 at 3, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.1].
25. E T Durie “Custom law: address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 Victoria University of Wellington Law Review 325 at 328.

²⁶ Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.23]–[6.36] and [6.61].

27. Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 43; Mason Durie “Letter to the Law Commission commenting on the draft ‘Māori Custom and Values in New Zealand Law’” (19 February 2001) at 2.
28. Joseph Williams “He aha te tikanga Maori” (unpublished paper for Te Aka Matua o te Ture | Law Commission, 1998) at 17; E T Durie “Custom law: address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 Victoria University of Wellington Law Review 325 at 327; E T Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449 at 450; Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 43; Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.62]–[6.63] and [6.72].
29. Māori Marsden Statement of evidence, #F25 at 3, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.70].

at iwi or waka level as well as the emergence of pan-Māori collectives, including the Kīngitanga.30

• 1.13 This evolution continued in the post-colonial period as Māori underwent a major urban migration.31 Pan-Māori collectives of a different kind emerged, including Māori communities within large urban centres who (while not directly whakapapa-connected) were unified through their Māori identity and shared kaupapa (values and purposes).32 As Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal has for example discussed in respect of the West Auckland urban Māori collective Te Whānau o Waipareira Trust, these new communities adopted many of the values of traditional groupings.33
• 1.14 Marae have been a constant throughout this evolution in Māori society, identified by Tā Pou Temara as “the central aspect of the base of hapū decision making structures”. 34 Marae remain the place where tikanga is actively practised and mana (authority) is expressed and maintained. Marae are, as Tā Pita Sharples has said, “the focal point in the social, cultural, political and spiritual development and wellbeing of the Māori people”.35
• 1.15 The values underpinning tikanga are another constant. Tikanga values sustain the identity of Māori communities and support their survival. Māori collectives maintain their mana, their independence and responsibility for their own tikanga. At the same time, they uphold tikanga values of interdependence and inter-relationship, which in turn are driven by underlying tikanga of whakapapa and whanaungatanga (kinship). Many of these values reflect practical considerations. For example, in communities that were traditionally both small and autonomous, helping others and allying with others was important.36 This closeness gives rise to tikanga such as reciprocity to those who have helped in the past and generosity (manaakitanga). It has been said that, in Māori communities, “[p]ower flowed from the people up and not from the top down” and that “[c]ontrol from a centralised or super-ordinate authority was antithetical to the Maori system”.37 The independent identity of Māori groups and their control of their own tikanga are expressions of such a preference for localised autonomy over centralised authority. These are fundamental features of Māori society that continue to shape and define tikanga. Such underlying tikanga values remain essential to understanding tikanga today.

30. Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 44; Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.73]–[6.74].
31. Campbell Gibson “Urbanization in New Zealand: a comparative analysis (1973) 10 Demography 71 at 82, as cited in Karyn Paringatai “Kua riro ki wīwī, ki wāwā: the causes and effects of Māori migration to Southland” (PhD Thesis, Te Whare Wānanga o Ōtākou | University of Otago, 2013) at 42.
32. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Whanau o Waipareira Report (Wai 414, 1998) at 37– 38.
33. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Whanau o Waipareira Report (Wai 414, 1998) at 39– 40 and 76.
34. Pou Temara Affidavit, 24 January 2022 at [12], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.54].
35. Pita Sharples Affidavit, 28 January 1998 at [43], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.15].

³⁶ Edward Taihakurei Durie (wānanga held at Wellington, May 2023).

37. E T Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449 at 449–450; Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.33] and [6.36].

THE MODERN REALITY AND VITALITY OF TIKANGA

• 1.16 Tikanga has always been pragmatic and responsive to the needs of the communities that it serves.38 As the situation demands, tikanga will change to meet it. In 2001, the Commission referred to “a continuing review of fundamental principles in a dialogue between the past and the present”.39 As it said:40

... judges and decision-makers invited to give recognition to tikanga Māori should bear in mind that the vitality of custom law is being continuously replenished within the fora of te ao Māori.

• 1.17 Accordingly, judges and decision makers engaging with tikanga today will find variations. They should also be aware that tikanga is rebuilding after a time of massive disruption affecting both tikanga itself and Māori society. Dame Joan Metge, who has written on tikanga throughout her career, notes for example that the word “tikanga” as a concept did not itself reassume prominence until the 1980s.41
• 1.18 Examples are readily found of tikanga actively adapting in answer to modern realities. However, such change will be "effected with adherence to fundamental principles and beliefs".42 Even while there can be major changes in response to altered circumstances, tikanga remains grounded in stable underlying values and principles that have always been and continue to be shared.43
• 1.19 Later in the Study Paper, we give more attention to the implications for those engaging with tikanga in a modern and secular context of its connection with the non-ordinary realms that some may term “magico-religious”, or others “tapu”. In the end, though, while tikanga touches upon “the most sacred or important matters” it also addresses “the very mundane” concerns of everyday life.44 Tikanga responds, as Mead says, to the need to simply help people survive.45 The right way of navigating any situation will be actively debated, particularly situations that are new. All of these features of tikanga are relevant as we navigate this Study Paper. They will arise for anyone engaging with tikanga. We mention them because being mindful of them will assist in understanding tikanga when engaging with it on an everyday level.

³⁸ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 10.

39. Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 3, citing Michael Belgrave “Māori customary law: from extinguishment to enduring recognition” (unpublished paper for the Law Commission, 1996) at 51.
40. Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 5; see generally at 2–5.

⁴¹ Joan Metge (personal communication, kōrero February and March 2023).

⁴² Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 10 and 104–105.

43. Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.3]–[2.21]; Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 2–5.
44. Joseph Williams “He aha te tikanga Maori” (unpublished paper for Te Aka Matua o te Ture | Law Commission, 1998) at 2.
45. Hirini Moko Mead “The nature of tikanga” (paper presented to Mai i te Ata Hāpara conference, Te Wānanga o Raukawa, Ōtaki, 11–13 August 2000) at 3–4; see Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 16.

TIKANGA AND STATE LAW

• 1.20 Tikanga and state law now co-exist in Aotearoa New Zealand’s legal landscape.46 Within the category of state law, we include legislation, other regulation, judge-made common law and state-based institutions, conventions and norms that underpin state law.47 As such, our scope includes laws developed by the public agencies and local authorities empowered to regulate our lives. It is not confined to the work of courts.
• 1.21 Tikanga is influencing state law. Reflecting the ongoing interaction of state law with tikanga, Figure 1 (which follows) identifies three spaces: tikanga, state law, and a space within the state law circle where tikanga and the state are interacting, producing a body of laws that reference tikanga. Our Study Paper considers how they can do so with integrity, so that the resulting body of laws is sound.
• 1.22 Alongside these developments, tikanga continues to function and to retain its separate identity. The separate circle, tikanga, in our figure has aspects termed “Māori” and “ā- iwi”.48 “Ā-iwi” (language adopted in our figure for brevity) refers to the localised expressions and application of tikanga by any Māori kinship group. For instance, referring to the groupings earlier introduced of waka, iwi, hapū, whānau and marae: in addition to tikanga ā-iwi, there may be tikanga ā-waka, tikanga ā-marae, tikanga ā-hapū or tikanga ā-whānau.49
• 1.23 The ways in which state law might influence expressions of tikanga are not the focus of this Study Paper. However, the separate circle, tikanga, does imply one important way in which the state can acknowledge tikanga — aside from recognising its potential relevance for state law. That is by simply acknowledging the independent legitimacy of tikanga and supporting its ongoing function within Māori communities.
• 1.24 Overall, Figure 1 reflects the three parts of this Study Paper. As the paper proceeds, we discuss in turn:

(a) tikanga;

(b) how, to date, state law has interacted with tikanga; and

(c) the processes for their future engagement.

• 1.25 For reasons we now turn to explain, the space representing the nascent process of tikanga-state law engagement in our figure shows a tukutuku pattern.

46. Compare Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 32: “the first law of Aotearoa, the second law of New Zealand”.
47. For a “constitutional sketch”, see Matthew S R Palmer and Dean R Knight The Constitution of New Zealand: A Contextual Analysis (Hart Publishing, Oxford, 2022) at 5–9.
48. See generally Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at Section One.
49. See particularly Hirini Moko Mead Affidavit, 25 February 1998 at [101], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.21]: “In my opinion, the concept of iwi cannot be fully appreciated or understood without considering the units which underpin iwi, namely the whānau and the hapū and their critical importance to the entire structure.”

Figure 1: Aotearoa New Zealand law — tikanga, state and an interactive space

A METAPHOR FOR FUTURE ENGAGEMENT: TUKUTUKU

• 1.26 The specific tukutuku design, poutama, that is shown in Figure 1 and on our front cover represents steps towards knowledge. As Adele Holland and Mary Silvester explain, poutama is:50

... a metaphor for the time spent consolidating new knowledge, represented by the plateau at each step; and for the period of engaging strenuously with the new knowledge, represented by the vertical step. These lead to continuing progress as people journey upwards together.

• 1.27 More generally, tukutuku involves a process of two people working together that we consider to be an appropriate metaphorical way of considering the future engagement between tikanga and state law.
• 1.28 Tukutuku are latticework panels, formed of vertical stakes (kākaho) and horizontal rods (kaho) stitched with traditional patterns. They were historically part of the wall construction of the meeting houses, wharenui. Although in modern times tukutuku are largely decorative, their symbolism remains undiminished.51 Their makers, originally known as “tuitui workers” (“tuitui” meaning to lash or bind), work in pairs. One person stands in front of the panel and another behind, threading fibre through spaces in the lattice to each other and binding the stakes and rods together.52 Puhanga Patricia Tupaea (Ngāti

50. Adele Holland and Mary Silvester “The poutama tukutuku metaphor and how it adds value to the tertiary learning journey” (paper presented to Annual International Conference of the Association of Tertiary Learning Advisors of Aotearoa/New Zealand (ATLAANZ), Wellington, November–December 2011) 16 at 18, citing Arapera Royal Tangaere. See also John C Moorfield Te Aka Māori-English English-Māori Dictionary and Index <maoridictionary.co.nz>; Kahutoi Te Kanawa “Te raranga me te whatu — tāniko and tukutuku” (22 October 2014) Te Ara — The Encyclopedia of New Zealand <teara.govt.nz>.
51. Christchurch City Libraries | Ngā Kete Wānanga-o-Ōtautahi “Pūawaitanga o te ringa | Fruits of our busy hands: the tradition of tukutuku” (booklet compiled by Christchurch City Libraries | Ngā Kete Wānanga-o-Ōtautahi, Christchurch, 2003, accessed at <christchurchcitylibraries.com>).

⁵² Makereti Papakura The Old-Time Maori (Victor Gollancz, London, 1938) at 305–306. See also Erenora Puketapu-Hetet

Maori Weaving (Longman, Auckland, 1999) at 29–30.

Koata) describes giving and receiving back the thread, away from oneself and towards oneself: “tuku atu, tuku mai”.53 Tukutuku thus implies values of reciprocity and connection.54 As wharenui were constructed in the past, the tukutuku work to complete their walls would involve a tohunga (Māori knowledge expert) and another assistant outside.55 Within the house, the tohunga was responsible for the pattern.

• 1.29 Metaphorically, if tikanga were considered as the vertical stakes (kākaho) of a tukutuku, state law might be considered as the horizontal rods (or kaho). Tukutuku then represents a metaphorical process of connecting and binding together the kākaho of tikanga and the kaho of state law. The participants, Māori and state, might be considered as the people working on each side of the panel.
• 1.30 Tukutuku has synergy with the way in which the Commission’s earlier reports have reflected on the intersection of tikanga with state law. Rather than merely incorporating tikanga into a pre-existing legal model written around dominant norms, laws developed by the state should seek to:56

... weave new law that reflects tikanga Māori ... We think this is a deeply important approach to law-making in Aotearoa New Zealand to support a nation that is grounded in the commitments of te Tiriti, to the benefit of all New Zealanders.

• 1.31 Tukutuku conveys other associated values. Tukutuku, connecting two people, expresses an ideal of balance. Importantly, those who explain the meaning of a “tuku” have considered that while it is a process of giving (and in return receiving), it does not involve “letting go” or a relinquishment of mana or rangatiratanga.57 Instead, tuku are described as creating obligations,58 as an aspect of utu (reciprocally responding),59 and as an invitation “to share ... life and community”.60 As the tukutuku metaphor may help to understand, the thread is passed anticipating that either it will be returned to its giver to continue the pattern or that the person behind can be entrusted to make the proper customary tie.

53. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Tau Ihu o te Waka a Maui: Report on Northern South Island Claims (Wai 785, 2008, vol 1) at 37.
54. Wiremu Doherty, in wānanga with Te Aka Matua o te Ture | Law Commission (9 February 2023); Wiremu Doherty, peer review comments to Te Aka Matua o te Ture | Law Commission (14–15 February 2023).
55. Te Rangi Hiroa (P H Buck) “Maori, decorative art: no 1, house-panels (arapaki, tuitui, or tukutuku)” (1921) 53 Transactions and Proceedings of the Royal Society of New Zealand 452 at 455. Tohunga were often men — their assistant in likelihood a woman, not allowed to enter the wharenui herself until tapu was lifted on the completed house. This implies a gender balance in tukutuku making, as do the materials of a tukutuku panel (involving both wood work and weaving). However, some also refer to wāhine as tohunga: see Te Riaki Amoamo Affidavit, 21 February 2022 at [29], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.111].
56. Te Aka Matua o te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 80.

⁵⁷ See Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.222].

58. Vivian Tāmati Kruger Statement of evidence, 2 June 2020 at [121]–[124] and [126], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.217]; Merata Kawharu “Kaitiakitanga: a Maori anthropological perspective of the Maori socio-environmental ethic of resource management” (2000) 109 The Journal of the Polynesian Society 349 at 361.
59. Margaret Anne Kawharu Statement of evidence, 2 June 2020 at [30]–[33] and [35], as cited in Coates and Irwin- Easthope “Beneath the herbs and plants”, Appendix 2 at [4.276].
60. Rima Eruera Statement of evidence, #F23 at 9, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.222].

• 1.32 At the present time, interactions between tikanga and state law do not fully realise such values. They occur in forums where there is unequal power, where state actors assert authority and decide what is authoritative according to orthodox rules. As Dr David V Williams (now Professor Emeritus) has put it:61

Once ‘rules’ of custom are incorporated into the mainstream of the state legal system as precedents they may then be treated in the same way as all other legal norms. They can be modified, distinguished or even over-ruled.

• 1.33 As Williams suggests, the story of the shark and the kahawai is apt:62

... when the shark met the kahawai, the shark suggested that they should join together and be as one. Perceiving that this would occur by the shark swallowing the kahawai, the kahawai demurred — preferring a continuing existence as a kahawai rather than ‘assimilation’ into unity with the larger fish.

• 1.34 We therefore remain mindful that a “delicate balance and a sense of wariness” is required.63 Those who are wary of the realities of tikanga-state interaction and who see hazards in the engagement between tikanga and state law have historical evidence to draw on. As the Commission explained in its 2001 Study Paper:64

... the systems of introduced laws and settler policies were geared towards the eclipse of Māori custom law ... A process of denial, suppression, assimilation and co-option put Māori customs, values and practices under great stress.

• 1.35 Even today, encounters between tikanga and state law have tended to favour the dominant system of legal norms.65
• 1.36 There is, however, another perspective. That is that tukutuku anticipates a continuing process — of statute by statute, case by case, making tikanga connections and incorporating aspects of tikanga. Given time, as this continues, the smaller circle enlarges within state law. As Justice Joseph Williams (writing extra-judicially) has considered, in time we may find that an emergent third law of Aotearoa New Zealand “has come to change both the nature and culture of the second [state-imposed] law” by perpetuating the first law of tikanga.66 Such a re-emergence contrasts with the “eclipse” that the Commission’s 2001 Study Paper observed.67
• 1.37 In our view, tukutuku represents essential tikanga values or ideals that, now and into the future, can guide those working at the interface of tikanga with state law. The metaphor, tukutuku, is important because its tikanga-associated meanings are reminders of the

61. David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name for Te Aka Matua o te Ture | Law Commission, 1998, dated 10 November 1998 with minor update 2020) at 4.
62. David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name for Te Aka Matua o te Ture | Law Commission, 1998, dated 10 November 1998 with minor update 2020) at 4–5.
63. David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name for Te Aka Matua o te Ture | Law Commission, 1998, dated 10 November 1998 with minor update 2020) at 4–5.

⁶⁴ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 22.

65. See for example Takamore v Clarke [2012] NZSC 116, [2013] NZLR 733 at [169]; Natalie Coates “What does Takamore mean for tikanga?” [February 2013] Māori Law Review 14; and see also Te Aka Matua o te Ture | Law Commission Te Aka Matua o te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at [2.128].
66. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 12.

⁶⁷ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 22.

correct values as tikanga and state law engage. Its underlying expectations — such as reciprocity, balance, holding a matter on trust and correctly repeating the pattern, an awareness that mana is reinforced and strengthened, not given away by tuku — ought always to be at the forefront of state actors’ minds as they seek to engage with tikanga. Such values are one way of supplying tikanga-given guardrails for the interaction of tikanga with state law.

OUR APPROACH

• 1.38 This project has presented some significant challenges. Tikanga, like state law, is vast and complex. While anchored in broadly shared values, those values are expressed and performed in a multiplicity of ways. Another source of complexity for us has been the diversity of audiences we are addressing. We want the Study Paper to be accessible to people without significant prior knowledge of tikanga, or even of state law. But it has also been a significant concern for us to communicate our account of tikanga in an authentic way that maintains the integrity of tikanga.
• 1.39 Against this backdrop, we commenced our task by seeking the assistance of renowned pūkenga tikanga (tikanga experts) and legal professionals who specialise in the study of tikanga or are actively engaged in tikanga-related legal practice. This has enabled us to properly ground our account of tikanga, to draw on a broader range of expertise than is currently available within a small organisation such as the Commission, and to undertake an ambitious task within the tightly confined timeframes of the project.

Externally commissioned work

• 1.40 We commissioned three external research papers that have each substantially contributed to shaping the Study Paper. They have assisted us with how to approach tikanga, with how to ground our explanations of tikanga in mātauranga Māori, and with conceptualising, on a more philosophical level, the nature of tikanga and its interaction with state systems.
• 1.41 “Tikanga”, a paper prepared for us by Professors Wiremu Doherty, Tā Hirini Moko Mead and Tā Pou Temara of Te Whare Wānanga o Awanuiārangi, is published in Appendix 1. 68 We have worked collaboratively with the Awanuiārangi pūkenga throughout our project. Their paper has helped to ensure our own approach is tikanga-consistent. It orients tikanga within what the Awanuiārangi pūkenga identify as systems of Māori knowledge and provides an account of tikanga including discussion of the symbolic importance of wharenui and an overview of tikanga concepts. The Awanuiārangi paper has closely supported the development of Part One of this Study Paper.
• 1.42 A challenge we encountered in this project was the inability, given limited time and resources, to engage directly with hapū and iwi about their tikanga perspectives. Mindful of that limitation we engaged two law firms that specialise in tikanga-related legal practice, Kāhui Legal and Whāia Legal, to review tikanga evidence given in Waitangi Tribunal and court hearings. The resulting paper prepared by Natalie Coates and Horiana Irwin-Easthope and published in Appendix 2 reviews more than 800 briefs of tikanga

68. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023).

evidence providing hapū and iwi perspectives from throughout Aotearoa New Zealand.69 The paper synthesises themes which the evidence suggests are important to hapū and iwi. We have drawn on this paper throughout our work and use the expressions of tikanga that it documents particularly in Chapter 3.

• 1.43 Finally, to inform our thinking on a potential new framework for engagement between tikanga and state law, we commissioned Associate Professor Nicole Roughan of the University of Auckland Law Faculty to examine approaches to engagement between indigenous and state legal systems. Roughan’s paper, “Interlegality, interdependence and independence: framing relations of tikanga and state law in Aotearoa New Zealand”, is published in Appendix 3. It envisages a domain of independent tikanga operation and a domain of interdependent operation of tikanga with state law.70 This paper may particularly appeal to those who are interested in a more philosophical perspective. In addition, we had the benefit of two research notes produced by Dr Max Harris and Professor Claire Charters of the University of Auckland.71 Their research gave further theoretical grounding to the approach taken in Part Three of the Study Paper.
• 1.44 We have ourselves found all of these papers helpful and stimulating. We expect others will share our view. That said, in each case, they represent their authors’ views and not necessarily those of the Commission. Some qualifications should also be noted:

(a) The “Tikanga” paper provides the perspective of the Awanuiārangi pūkenga and strongly reflects “Tūhoetanga” or a “Mataatua waka” perspective. While it provides rich tikanga Māori information, it should not be assumed that others, whose own accounts differ, will endorse its explanations. Others may have differing perspectives on tikanga. It is important to understand this diversity of approach.

(b) The tikanga explanations given in the paper by Coates and Irwin-Easthope are largely drawn from post-1980s legal materials and will have been influenced by their recency and legal context. Given this, it may be beneficial to read this paper alongside other publications that reference older sources.72 That caveat aside, this study by Coates and Irwin-Easthope brings to light iwi and hapū explanations that we think will greatly benefit future research and aid understanding of tikanga.

Review processes

• 1.45 Consistent with our regular processes, we have been guided by:

(a) An Expert Advisory Group appointed specifically for the project with the following membership: Tā Edward Taihakurei Durie (Ngāti Raukawa, Ngāti Kauwhata), Robert Joseph (Tainui, Tūwharetoa, Ngāti Kahungunu and Ngāi Tahu), Annette Sykes (Ngāti

69. Natalie Coates and Horiana Irwin-Easthope “Kei raro i ngā tarutaru, ko ngā tuhinga o ngā tupuna | Beneath the herbs and plants are the writings of the ancestors: tikanga as expressed in evidence presented in legal proceedings” (paper prepared for Te Aka Matua o Te Ture | Law Commission, 2023).
70. Nicole Roughan “Interlegality, interdependence and independence: framing relations of tikanga and state law in Aotearoa New Zealand” (paper presented to Te Aka Matua o te Ture | Law Commission, 2023).
71. Max Harris "Pacific insights: approaches to indigenous legal systems and other bodies of law in Pacific jurisdictions" (research note, 2023); Max Harris "The common law method, tikanga Māori, and the law of Aotearoa New Zealand: a discussion note" (research note, 2023).
72. For example Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013); The Legal Māori Resource Hub <www.legalmaori.net>.

Pikiao, Ngāti Makino), Jacinta Ruru (Ngāti Raukawa, Ngāti Ranginui), Paora Tapsell (Te Arawa, Ngāti Raukawa), Kerensa Johnston (Ngāti Tama, Ngaruahine, Te Atiawa, Ngāti Whawhakia) and Tania Hopmans (Ngāti Kahungunu, Ngāti Marangatūhetaua).

(b) The Māori Liaison Committee, a standing committee established to assist the Commission to take into account te ao Māori when making its recommendations for reform and development of the law.73

• 1.46 We also considered that this project would benefit from having an Internal Advisory Group to assist with the scope and direction of the Study Paper and to provide feedback on early drafts. We appointed Tai Ahu (Waikato-Tainui, Ngāti Kahu), Carwyn Jones (Ngāti Kahungunu, Te Aitanga-a-Māhaki), Māmari Stephens (Te Rarawa) and David V Williams for this purpose. The Internal Advisory Group also reviewed and provided feedback on the papers in Appendices 1 and 2.
• 1.47 The Awanuiārangi pūkenga reviewed and were consulted extensively on the chapters in Part One: Tikanga. The authors of the papers in Appendices 2 and 3 likewise reviewed drafts of the chapters that draw upon their research. We have further benefited from comments provided on drafts by members of the judiciary, including members of the senior courts and the Māori Land Court.

HOW THE STUDY PAPER IS ORGANISED

• 1.48 This Study Paper is divided into three parts, which respectively consider tikanga, the history of interaction between tikanga and state law, and their future engagement.

Part One: Tikanga

• 1.49 Part One is concerned with understanding tikanga from within mātauranga Māori:

(a) Chapter 2 begins by describing some steps towards understanding tikanga. It connects tikanga with mātauranga and explains the Māori creation narratives called pūrākau, identifying them as sources of tikanga. This chapter then suggests that the marae meeting houses, wharenui, represent a useful starting point for tikanga exploration.

(b) Chapter 3 introduces core tikanga concepts. The explanation developed in this chapter provides a bridge to understanding tikanga concepts as a unified system of norms, drawing upon explanations by mātauranga experts.

(c) Based upon the framework of tikanga concepts that Chapter 3 has outlined, Chapter 4 gives a guide for tikanga engagement, illustrated with six hypothetical case studies.

Part Two: Interaction between tikanga and state law

• 1.50 Part Two provides a thematic overview of the interactions since 1840 between tikanga and state law:

(a) Chapter 5 reviews how the common law has engaged with tikanga.

(b) Chapter 6 examines the evolving approach taken by the state to recognition of tikanga in legislation.

⁷³ For terms of reference generally for the Māori Liaison Committee, see Māori Liaison Committee <www.lawcom.govt.nz>.

(c) Chapter 7 considers the way specific areas of the law in the modern legal landscape interact with tikanga, including family law, ture whenua Māori (Māori land law), environment law and criminal law.

Part Three: Future engagement

• 1.51 Part Three looks to the future and considers pathways to appropriate engagement between tikanga and state law:

(a) Chapter 8 proposes principles for proper engagement with tikanga by the courts consistent with the “common law method”.

(b) Chapter 9 discusses ways in which government agencies could approach engagement with tikanga when developing policy and legislation.

(c) Chapter 10 completes the Study Paper. It briefly reflects on the key contributions made, acknowledges perspectives that have been beyond our scope and notes that other future pathways for tikanga recognition remain open.

REO MĀORI TERMS

• 1.52 We are endeavouring to strike a balance in the Study Paper between Māori readers highly fluent in the Māori language and in tikanga, and other readers who may have no knowledge of either of these. In Aotearoa New Zealand today some common Māori terms (such as whānau, marae and tangihanga) are very widely used and have meanings that are sufficiently understood. We therefore have not defined all Māori words that are used in the Study Paper. However, we endeavour to provide simple explanations for the majority of Māori terms. Where Māori words are less well known, we have used simple in- text definitions or explained the meaning in the surrounding text to assist readers with understanding the meaning of the word in the relevant context.
• 1.53 These simplified definitions are given the first time that a word appears in each chapter. While they are intended to improve the accessibility of the Study Paper for those with limited knowledge of the Māori language, importantly they may not necessarily reflect the depth and breadth of the Māori meaning of these words. At the back of the Study Paper, an index of tikanga concepts is provided, indicating where important concepts in the Study Paper have been discussed and defined. In addition, we invite readers to use the online Māori language dictionary: Te Aka Māori Dictionary to assist their comprehension.74

74. Te Aka Māori Dictionary <maoridictionary.co.nz>; see also John C Moorfield Te Aka Māori-English, English-Māori Dictionary and Index (3rd edition, Longman/Pearson Education New Zealand, 2011), the text on which the online version of Te Aka Māori Dictionary is based.

Part One

Tikanga

24 STUDY PAPER 24 – HE POUTAMA TE AKA MATUA O TE TURE | LAW COMMISSION

It is not possible, or appropriate, to outline the depths of the philosophies which governed Maori life. However, their beliefs and the rules of behaviour which flowed from them can be compared to the parts of a sheltering whare. They were the foundations which supported the society, the walls which enveloped its members in security, and the roof which protected them from disorder and imbalance.

Moana Jackson1

1. Moana Jackson The Maori and the Criminal Justice System: A New Perspective | He Whaipaanga Hou (Department of Justice, Study Series 18, 1987–1988, part 2) at 43.

CHAPTER 2

Te wharenui |

the meeting house

Fundamental to any discussion of tikanga is the necessity to appreciate its placement and functioning within te ao Māori. Understanding tikanga requires a journey through the Māori world, one that outlines the knowledge systems, values and beliefs, and that locates tikanga into its natural environment. To try and build an understanding of tikanga outside of that framework runs the risk of it becoming de-contextualised and abstract, and where its authentic meaning becomes distorted.

Professor Wiremu Doherty, Tā Hirini Moko Mead and Tā Pou Temara1

INTRODUCTION

• 2.1 It is important for those wishing to build their understanding of tikanga and to engage authentically with it to consider tikanga within a Māori world view.2 Exploring aspects of te ao Māori (the Māori world) and the Māori knowledge systems underpinning tikanga provides a basis for better understanding.3 In this chapter, we explain what we mean by Māori knowledge systems and describe how they influence the distinction between tikanga Māori and tikanga ā-iwi. We then use Māori narratives and the concept of te wharenui (the meeting house) to lay further foundations.
• 2.2 The analysis in this chapter has been guided by explanations from Te Whare Wānanga o Awanuiārangi pūkenga (experts), Professors Wiremu Doherty, Tā Hirini Moko Mead and Tā Pou Temara (Awanuiārangi pūkenga), which we attach in full as Appendix 1.4 The Awanuiārangi pūkenga explain the importance of orienting tikanga within mātauranga (Māori knowledge) and use creation narratives to illustrate the origins of tikanga. They also describe the importance of wharenui as places of knowledge and as portals to a Māori world view. The wharenui reveals a connected world and enables us to begin to learn about tikanga principles.5

1. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [1.2]. Subsequent references to this paper in this chapter are abbreviated as follows: Doherty, Mead and Temara “Tikanga”, Appendix 1.

² Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.3].

³ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.60].

⁴ Doherty, Mead and Temara “Tikanga”, Appendix 1.

⁵ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.7].

THE METAPHOR OF THE WHARENUI

• 2.3 The metaphor of the wharenui in this chapter offers a way to invite readers into a mātauranga-immersed space. In te ao Māori the use of metaphor is common. The wharenui, in particular, is a widely chosen metaphor. According to the Awanuiārangi pūkenga, wharenui represent the first striving for knowledge. In this respect, our use of the wharenui metaphor is one way of positioning the reader within a Māori world view for the purpose of explaining mātauranga and tikanga. We wish to emphasise that our use of the wharenui is as an explanatory tool that can aid understanding of an ao Māori perspective and frame engagement with tikanga, rather than to explain wharenui. There are many sources available to assist readers who are interested in researching wharenui further.6 Importantly, these will include the specialised and unique accounts of iwi and hapū in regard to their own marae (both published and unpublished).7
• 2.4 Adopting a technique from whaikōrero (formal speech) and karanga (a ceremonial welcome call), the structure of the wharenui frames our discussion. The chapter is divided into four sections, each represented in our account by a part of the wharenui. Each of the first three sections represent one of three central posts or pillars called pou. As the pou are said to do, each holds a kete or basket of knowledge.8 The three pou hold up the sheltering roof of the wharenui. They are connected by the ridge pole, te tāhuhu.
• 2.5 Te poutuaroro is the pou in the middle of the front wall of the wharenui.9 In this first section of the chapter, we outline two Māori knowledge systems, each providing the basis for tikanga. We do so drawing upon explanation from the Awanuiārangi pūkenga, who differentiate mātauranga from what they call “generic” or non-Māori knowledge.
• 2.6 Te poutokomanawa is the pou at the centre of the wharenui.10 In this second section of the chapter, we provide a further entry point to tikanga through the Māori narratives called pūrākau, which describe Māori existence and creation. Pūrākau are sources of knowledge of core tikanga Māori concepts and Māori histories.11 Tikanga is found in them, as we explain.
• 2.7 Te poutuarongo is the pou that is part of the rear wall. In this third section of the chapter, we describe some physical aspects of a wharenui and marae ātea, showing how they represent a Māori world view and help to visualise the wharenui as a portal between the present day and other te ao Māori realms. These ways in which traditional designs of wharenui encode Māori narratives provide another insight into where mātauranga and tikanga may be found.
• 2.8 Te tāhuhu, the ridge pole, is the section that completes the chapter. Metaphorically beginning in times preceding us, te tāhuhu symbolises continuation to times that will come

6. We recommend for example Muru Walters, Robin Walters and Sam Walters Marae — Te Tatau Pounamu: A Journey Around New Zealand's Meeting Houses (RHNZ Godwit, Auckland, 2021).
7. See for instance Hirini Moko Mead, Layne Harvey, Pouroto Ngaropo and Te Onehou Phillis Mātaatua Wharenui: Te Whare i Hoki Mai (Huia Publishers, Wellington, 2017).

⁸ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.20].

⁹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.28].

¹⁰ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.28].

11. As Māori Marsden says in Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev. Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 56: these are not mere “fireside stories”, they encapsulate knowledge. See also Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.93] and [4.10].

after.12 In this last section of the chapter, we focus more directly on the tikanga values that the wharenui represents, and reflect on why imaginatively positioning oneself within the wharenui is a helpful standpoint from which to engage with tikanga. We draw together the prior three pou and establish an aho or genealogical line of connection to Chapter 3, which draws further on the wharenui when discussing tikanga concepts.

TE POUTUARORO: MĀORI KNOWLEDGE SYSTEMS

• 2.9 It is not possible to engage authentically with tikanga without some appreciation of the nature of the Māori knowledge systems that underpin it. Advice from the Awanuiārangi pūkenga regarding the importance of orienting tikanga within a Māori world view has been influential in our account of tikanga and the way in which we propose it can be engaged with authentically. We therefore begin by considering their outline of two knowledge systems before considering what we mean when we speak about Māori knowledge.13
• 2.10 The Awanuiārangi pūkenga describe two interconnected knowledge systems.14 The first is mātauranga Māori, which is the knowledge broadly shared by all Māori. The second is mātauranga ā-iwi, which is localised knowledge based on Māori kinship groups’ own experience and whakapapa (in this context, meaning connections). As a first step towards considering tikanga, the Awanuiārangi pūkenga suggest that knowledge of these two systems is helpful — particularly for those much more accustomed to a third system comprising knowledge that does not originate from Māori, which they term generic knowledge.15
• 2.11 Tikanga also reflects this way of classifying Māori knowledge. It can similarly be divided into the following two categories:

(a) Tikanga Māori, which covers the core beliefs, values and principles broadly shared among Māori and is informed by mātauranga Māori.

(b) Tikanga ā-iwi, which refers to the localised expressions of tikanga that are shaped by different Māori groups’ knowledge and experience. Tikanga varies between different Māori groups. Their own knowledge (or mātauranga ā-iwi) explains such variation.

• 2.12 When engaging with tikanga, the Awanuiārangi pūkenga consider that it is essential to bear in mind and maintain the distinctions between these three systems. Rather than simply applying the generic knowledge with which they will be most familiar, it is important that people who are not knowledgeable about tikanga locate it within the context of the Māori world view and the relevant mātauranga.16 It is also important that tikanga Māori and tikanga ā-iwi are not conflated. Observing the boundaries of these different systems is fundamental to safeguarding the integrity of tikanga.
• 2.13 This advice from the Awanuiārangi pūkenga has shaped our own perspectives on how to structure this Study Paper. Consistent with their advice, we are opening our own account

¹² Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.68].

¹³ See generally Doherty, Mead and Temara “Tikanga”, Appendix 1 at Section One.

¹⁴ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [1.18]–[1.19] and [1.36]–[1.39].

¹⁵ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [1.12] and [1.54]–[1.55].

16. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [1.31]; and see too Linda Tuhiwai Smith Decolonizing Methodologies: Research and Indigenous Peoples (2nd ed, Zed Books, London, 2012) at 201.

by orienting it within mātauranga. We have chosen to do so by using the wharenui metaphor as one way into a Māori world view.

• 2.14 Because of the extent to which both te ao Māori and mātauranga are heavily influenced by metaphysics and spirituality, some further explanation is required. Although it is not necessary to ascribe to this symbolism to understand tikanga, it is necessary to engage with it. We have ourselves found an explanation from Te Ahukaramū Charles Royal particularly helpful. Royal follows Reverend Māori Marsden, who explained:17

Cultures pattern perceptions of reality into conceptualisations of what they perceive reality to be; of what is to be regarded as actual, probable, possible or impossible. These conceptualisations form what is termed the ‘worldview’ of a culture. The worldview is the central systematisation of conceptions of reality to which members of its culture assent and from which stems their value system.

• 2.15 Referring to āronga (a concept used by him to stand for world view), Royal points out the way in which a people’s values or principles (kaupapa) arise from their ways of seeing their world.18 Values and principles in turn will give rise to the things we understand to be correct and actually do.19
• 2.16 In other words, the way people understand their world shapes their values and in turn their perspective on how to regulate and conduct their society. This is our starting point for consideration of tikanga in a legal context. When we are talking about knowledge, we mean, like Royal, world view. Metaphysics and spirituality are intrinsic to an ao Māori perspective. An understanding and genuine appreciation of this world view will pave a path towards a clearer understanding of tikanga.

TE POUTOKOMANAWA: MĀORI CREATION AND EXISTENCE

• 2.17 In this section we make connections between tikanga and a Māori view of creation and existence. Pūrākau, traditional forms of Māori narrative that recount creation, contain tikanga.20 Passed down from generation to generation through oral tradition, these accounts hold philosophical thought, constructs relating to knowledge, cultural codes and

17. Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 56; Te Ahukaramū Charles Royal “An organic arising: an interpretation of tikanga based upon the Māori creation traditions” in Ngā Pae o te Māramatanga Tikanga Rangahau Mātauranga Tuku Iho | Traditional Knowledge and Research Ethics Conference Proceedings 2004 (Ngā Pae o te Māramatanga, Auckland, 2005) 206 at 223.
18. Te Ahukaramū Charles Royal “An organic arising: an interpretation of tikanga based upon the Māori creation traditions” in Ngā Pae o te Māramatanga Tikanga Rangahau Mātauranga Tuku Iho | Traditional Knowledge and Research Ethics Conference Proceedings 2004 (Ngā Pae o te Māramatanga, Auckland, 2005) 206 at 223–225. As Royal explains, āronga is “a term not often used in common parlance”, less widely understood than the concepts with which he connects it: kaupapa and tikanga.
19. Te Ahukaramū Charles Royal “An organic arising: an interpretation of tikanga based upon the Māori creation traditions” in Ngā Pae o te Māramatanga Tikanga Rangahau Mātauranga Tuku Iho | Traditional Knowledge and Research Ethics Conference Proceedings 2004 (Ngā Pae o te Māramatanga, Auckland, 2005) 206 at 223–224.
20. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.93] and [4.10]; Māori Marsden in Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev. Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 66. Pūrākau may also be called “pakiwaitara”: see Doherty, Mead and Temara “Tikanga”, Appendix 1; Edmond Carrucan “Ko tikanga te mātāmua: ngā pūrākau, ngā pakiwaitara, me mihi, ka tika” (LLM Thesis, Te Whare Wānanga o Waikato | University of Waikato, 2021).

world views fundamental to identity.21 They are an example of the important concept within mātauranga Māori of looking to the past to inform the present.22 The kupu (word) itself — “pūrākau” — holds clues to their importance. “Te pū” refers to the base of a tree from which the growth cycle starts. “Rākau” refers to the growth and development of the upper tree. “Pūrākau” therefore alludes to the beginning and growth of all things.23

• 2.18 A brief account of Māori creation according to these narratives reveals both the inception of tikanga concepts and the significance of the wharenui. In the account which follows, we have been been guided by what the Awanuiārangi pūkenga have told us and recount the version of pūrākau that they shared.24 We emphasise that the narratives repeated here are only one version. Other iwi and hapū have different understandings of aspects of the pūrākau. It is not possible for one account to capture this diversity. Even so, although some details may vary, core elements of the pūrākau tend to be constant.25 We group the narratives as follows, discussing only selected aspects:

(a) The phases of creation: Te Kore, Te Pō and Te Ao Mārama.

(b) The journey to knowledge, provided in three baskets: ngā kete mātauranga.

(c) The decision by Hinenuitepō to live in the afterworld.

(d) Māui.

21. See Jenny Lee “Decolonising Māori narratives: pūrākau as a method” (2009) 2 MAI Review. For in-depth discussion of the significance of pūrākau, see Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016); Edmond Carrucan “Ko tikanga te mātāmua: ngā pūrākau, ngā pakiwaitara, me mihi, ka tika” (LLM Thesis, Te Whare Wānanga o Waikato | University of Waikato, 2021) at 12–17 and from 66.

²² Doherty, Mead and Temara “Tikanga”, Appendix 1 at [4.4].

²³ Wiremu Doherty, peer review comment to Te Aka Matua o te Ture | Law Commission (25 November 2022).

²⁴ Doherty, Mead and Temara “Tikanga”, Appendix 1.

25. Mason Durie Statement of evidence, #K14 at [2.4], as cited in Natalie Coates and Horiana Irwin-Easthope “Kei raro i ngā tarutaru, ko ngā tuhinga o ngā tupuna | Beneath the herbs and plants are the writings of the ancestors: tikanga as expressed in evidence presented in legal proceedings” (paper prepared for Te Aka Matua o Te Ture | Law Commission, 2023) at [2.14]. According to Durie, there are “common denominators that surpass the tribal and dialectical differences” to provide a generalised view of how te ao Māori began.

Te Kore, Te Pō, Te Ao Mārama

Figure 2: The phases of creation and emergence of Te Ao Mārama,

the world in which we live

• 2.19 In te ao Māori, Te Kore, Te Pō and Te Ao Mārama describe three co-existing, continuous phases of the creation of all things. Te Kore is the time of nothingness as well as a time of unlimited potential. Te Pō refers to a period of darkness and ignorance — yet it is also the period that marks the emergence of the atua Māori (ancestor-gods) Ranginui, Papatūānuku and their children. Te Ao Mārama is the time of enlightenment and acquisition of knowledge and refers to the present-day world.26
• 2.20 In the time of Te Pō, Ranginui and Papatūānuku lay in a close embrace. While in this embrace, they imbued the world with mauri or life essence, beginning with their children.27 Their children, all atua, are responsible for and creators of various domains of the natural world. Prominent among the atua are Tangaroa (atua of the sea), Tāne (atua of the forests), Tāwhirimātea (atua of the elements), Rongomatāne (atua of kūmara), Tūmatauenga (atua of man), Haumia (atua of fern root), Rūaumoko (atua of volcanoes and earthquakes) and Whiro (atua of evil, disease and pestilence). 28 In each domain, all elements and life forms descend directly from the atua.

26. Other names for Te Ao Mārama include Te Aotūroa, the world of standing tall: compare Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.10].
27. Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1991) at 83. Barlow refers to Io as the source of mauri within the universe.
28. See Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1991) at 11–12 for this account of the atua.

• 2.21 Already, this brief beginning illustrates the close connection in tikanga Māori between relationships and responsibilities. Implicitly, core tikanga concepts of whakapapa, whanaungatanga, mana, kaitiakitanga and tapu are present. These are the first of a core group of concepts around which we will continue to shape our explanation of tikanga in later chapters. The responsibility of each of the atua to care for their respective domains is an expression of their whakapapa (genealogical connection), mana (authority and responsibility) and kaitiakitanga (guardianship). The identification of elements and life forms as children of each atua highlights their inherent tapu or sacredness, together with the value of whanaungatanga (kinship) connecting all.
• 2.22 Within the embrace of Ranginui and Papatūānuku conditions were cramped and miserable for their children. Tāwhirimātea excepted, they resolved to separate their parents. The task was no easy feat. Only Tāne managed to achieve it by placing his back on Papatūānuku and his feet under Ranginui and thrusting upwards. He completed the task using poles to keep his parents apart.29 The separation that followed was cataclysmic. It ushered in the time of Te Aotūroa (the world of standing tall) but also a time of great conflict.30 Tāwhirimātea was furious with his siblings for their hara (wrongdoing). Harnessing the elements, he exacted a heavy price for what they had done to his parents in an onslaught that reshaped the world. Only Tūmatauenga withstood the destruction. However, he was also angered by his siblings and their failure to acknowledge Tāwhirimātea’s wrath. He too took a heavy toll, including consuming some of his siblings’ children.
• 2.23 This part of the narrative illustrates concepts of utu, mana, tapu and noa, and ea.31 Separating Ranginui and Papatūānuku was a violation of their mana and tapu. This violation demanded utu (reciprocation) to restore ea (resolution or balance), as did the siblings’ failure to withstand Tāwhirimātea’s assault. For Tūmatauenga, utu involved nullifying the tapu of his siblings’ children. By eating them, Tūmatauenga made them noa (ordinary, or free from tapu) and thus available for future human consumption.
• 2.24 While peace was restored among the siblings (at least for a time), Papatūānuku and Ranginui remained inconsolable.32 Ranginui showered Papatūānuku with tears of rain, and she sent mists skyward. In desperation, Tāne turned Papatūānuku over so that she was unable to see her husband, but in her sadness she began to die. Tāne resolved then to restore his parents’ views of each other at a place in Te Ao Tukupū (the universe) called Mataaho. It has since been known as Te Hurihanga-nui-i-Mataaho, or the Great Turning Over at Mataaho. This pūrākau manifests the core value of love or concern, aroha — ka aro te hā o Papa ki a Rangi, ka aro te hā o Rangi ki a Papa, ka whānau ko te aroha.33

²⁹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.10]; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal

The Report on the Management of the Petroleum Resource (Wai 796, 2011) at 24.

³⁰ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.10].

³¹ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 13.

32. For this pūrākau, we draw on the account in Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Report on the Management of the Petroleum Resource (Wai 796, 2011) at 25. We understand that this recounting was authored primarily by Pou Temara.
33. The breath of Papa drifted upwards towards Rangi and his breath descended down towards Papa and it is from this act that aroha was born: Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Report on the Management of the Petroleum Resource (Wai 796, 2011) at 25, citing Chris Winitana.

• 2.25 These pūrākau regarding the separation of Ranginui and Papatūānuku provide an example of how pūrākau reveal founding tikanga concepts and values still living and practised today.

Ngā kete mātauranga

• 2.26 Following their parents’ separation, Tāne and his older brother Whiro each set about securing knowledge. The knowledge system, mātauranga, was packaged into three kete (baskets) and two stones, accessed from the creators of our known universe.34
• 2.27 Tāne’s journey to seek the kete and the stones of knowledge involved moving between levels of consciousness, often referred to as heavens.35 Tāne, with the assistance of his brothers, passed through each level of consciousness by accessing the wharenui located at each level and exiting through a hole in the roof intended for smoke. This hole is called the pūmotomoto. In this way, Tāne succeeded in climbing between successive heavenly wharenui and reaching the requisite level of consciousness, Te Toi-o-ngā-Rangi, while his brother Whiro fell short.36 There, Tāne received the three kete of knowledge (named kete uruuru-matua, kete uruuru-rangi or tipua, kete uruuru-tau or tawhito) and two stones (Hukātai and Rehutai).37
• 2.28 After completing proper rituals or kawa, Tāne returned to the present-day world, climbing again through each of the pūmotomoto on his descent. He placed the kete and stones in a wharenui called Whare-Kura, which had been designed for this purpose.38 The kete were housed within the three main pou that stand in the centre of the building: te poutuaroro (immediately to your right as you enter the house), te poutokomanawa (standing in the centre of the wharenui) and te poutuarongo (located in the centre of the rear wall).39 The kete uruuru-matua, containing all the knowledge relating to good, lies within te poutuarongo, at the rear. The kete uruuru-rangi, holding knowledge of rituals and associated practices, is located at the door. The last kete, kete uruuru-tau, holds malevolent elements.40 It is kept within te poutokomanawa, located at the heart of the wharenui.

34. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.11]–[2.12]. While (reflecting the account given by Awanuiārangi pūkenga) the protagonist here is Tāne, this pūrākau offers an important example of iwi histories’ variation. According to some iwi narratives (including that adopted by Te Aka Matua o te Ture | Law Commission, reflected in our ingoa Māori and its meaning as explained in the inside front cover of our published papers), the baskets containing knowledge were obtained by Tāwhaki. Some accounts, furthermore, refer to Tāwhaki and his brother’s attempted ascent to the heavens by way of two vines — Tāwhaki choosing, correctly, Te Aka Matua, the deeply established parent vine.

³⁵ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.11].

36. For a powerful alternative pūrākau about Whiro’s journey, who (as retold by Edmond Carrucan) also received a kete, see: Edmond Carrucan “Ko tikanga te mātāmua: ngā pūrākau, ngā pakiwaitara, me mihi, ka tika” (LLM Thesis, Te Whare Wānanga o Waikato | University of Waikato, 2021) at 116–119.
37. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.14]. The kete are also commonly referred to as te kete tuauri, te kete tuatea and te kete aronui: see for example “kete o te wānanga” in John C Moorfield Te Aka Māori-English, English-Māori Dictionary and Index <maoridictionary.co.nz>.

³⁸ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.14]–[2.15].

39. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.15]–[2.20]. Other names such as “pouāniwaniwa” or “pou te āniwaniwa” for te poutuarongo or “pou tāhū” (a name for the post supporting the ridge pole in the front wall) may be used: see John C Moorfield Te Aka Māori-English, English-Māori Dictionary and Index <maoridictionary.co.nz>.

⁴⁰ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.17].

• 2.29 This pūrākau locates wharenui as the structures that house knowledge and helps us to understand the metaphor of the wharenui as a place to engage with mātauranga. Just as the kete are housed, one within each pou, our knowledge sharing in this chapter echoes the same approach: each pou framing another aspect of understanding.

Hineahuone, Hinetītama, Hinenuitepō

• 2.30 Pūrākau relating to Hinenuitepō (daughter of the first union of Tāne and Hineahuone, lover of Tāne and now guardian of the afterworld) are among the narratives most widely known and shared. Following his parents’ separation and his success in acquiring the kete containing knowledge, Tāne turned his attention to the creation of human life. Using onetapu, the sacred clay from Papatūānuku, Tāne moulded the first female form.41 He breathed life into her nostrils, and Hineahuone was created.42
• 2.31 The union of Tāne and Hineahuone produced a daughter, Hinetītama.43 Later, Tāne took Hinetītama as his wife and continued humankind’s procreation. However, Hinetītama did not know that Tāne was also her father. She inquired often of Tāne who her pāpā was. Eventually, Tāne told her to look to the walls of the wharenui where she would see her father.44 When Hinetītama realised that this meant her father was her lover, in her shame, she said:45

I will leave this realm of Te Aotūroa and relocate to Rarohenga and there await our offspring to ensure they safely make passage when they pass from this world into the next. There I will take the name Hine-nui-te-pō.

• 2.32 Hinenuitepō fled from Te Aotūroa to Rarohenga, gateway to the underworld of Hawaiki. There she resides, awaiting her descendants’ passing, to ensure that all who have died are guided safely from this world into the next and come to Rarohenga as their final resting place.46 Her question to Tāne and his response are further reminders that wharenui (in this pūrākau, the walls of the house) hold knowledge.

Māui

• 2.33 Numerous pūrākau recount subsequent key events, continuing to show pūrākau as the inspiration for core tikanga norms and values. For example, several of the pūrākau about the achievements and final transgression of Māui (who is an important figure in Māori oral history) illuminate the importance of proper process or kawa and of the ritual prayers karakia.

41. Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 14. See also Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuarua (Wai 262, 2011, vol 1) at 17.
42. An alternate spelling is Hine-ahu-one. See Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 14. See too Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.38], expanding on the derivation of the names Tāne and Hine (meaning male and female in reo Māori). “Nehu” is pollen, “tā” is to insert and “hī” is to pick up. Thus Tāne(hu) implies to implant ne(hu), Hi to receive ne(hu). Combining Ta and Hi, tahi (meaning one) implicitly reminds of this first union. It also suggests one is not complete without the other.

⁴³ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 14.

⁴⁴ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.25].

⁴⁵ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.25].

⁴⁶ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 14.

• 2.34 The successful and essential snaring of Tamanuiterā (the Sun) by Māui is preceded by a powerful karakia.47 Following his discovery of Te Ika a Māui (the fish of Māui, a name for the North Island of Aotearoa New Zealand), his brothers violated tapu by carving up Te Ika a Māui before proper karakia procedures were completed. According to some iwi histories, this resulted in the brothers being turned to stone.48 Perhaps the most significant pūrākau relating to exploits by Māui commemorates his fatal attempt to secure immortality for humankind by entering the vagina of Hinenuitepō to retrieve her heart. His failure to do so is linked back to a mistake made by his father when reciting the sacred tohi rite (a karakia made at birth).49 Before crushing him to death, Hinenuitepō cursed Māui, saying: “ka mate a ao ne koe”, which translates as “as a result of your actions you will from here ever after be born and perish — you will continue to die from here evermore”.50

Summary: creation narratives’ significance

• 2.35 Tikanga principles of founding importance are therefore sourced in these creation narratives. The pūrākau we have touched on allude to the sacred importance of kawa as a process for navigating states of tapu and noa, respecting mana and mediating between spiritual and physical dimensions. Earlier in this chapter, we identified references in creation pūrākau to the whakapapa and whanaungatanga of all things commencing with Ranginui and Papatūānuku. These pūrākau explain the inherent mauri and tapu of the elements and living things, by observing their connections with the atua. They identify the responsibility that atua were given to tiaki and manaaki (safeguard and care for) their kin. They refer to the requirement of utu for hara or wrongdoing, to restore ea — a settled state. The pūrākau have explained the part played by wharenui in both acquiring and safekeeping knowledge. According to the Awanuiārangi pūkenga, the very creation of wharenui “is attributed to Tāne as a result of the activities performed in accessing the kete and kōhatu from Te Toi-o-ngā-Rangi and bringing them back to Te Aotūroa [our present world]”.51 In Chapter 3, we return to each of the concepts which have been identified above in bold to consider their meaning more fully.

⁴⁷ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 24.

48. Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 25– 26.

⁴⁹ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Report on the Management of the Petroleum Resource

(Wai 796, 2011) at 26.

⁵⁰ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.81].

⁵¹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.18].

TE POUTUARONGO: EXPLAINING THE SIGNIFICANCE OF THE WHARENUI AND MARAE ĀTEA

• 2.36 In this section, our discussion explains how the physical design of the wharenui wraps those within its walls in mātauranga, helps them to understand relationships and connects them with a Māori world view.52 As the pūrākau have helped to show, wharenui are constructions that house knowledge and are connected to finding knowledge. Traditional forms of wharenui do this in physical ways such as through architecture and whakairo (carving). Just as we have shown how pūrākau encode tikanga, wharenui teach and share tikanga architecturally and visually. This demonstrates tikanga Māori ways of encoding mātauranga and tikanga beyond the written word.
• 2.37 Before we begin our discussion of the physical features of wharenui, it is important to recognise that neither the wharenui nor the marae where the building stands are defined by specific physical attributes. Certain physical features are widely found. However, it remains important to be aware of variation and that, above all, marae are meeting spaces with a function of managing those interactions.53 Our discussion of the physical aspects of wharenui again draws closely on the account developed by the Awanuiārangi pūkenga. While they provide an essential account of the traditional elements of wharenui and their widely shared meaning, necessarily their explanation generalises and is illustrated by referring to the wharenui on one marae: Te Whaiatemotu at Ruatāhuna.54 Their generalised explanation and depictions of their own marae may not be representative of all others.
• 2.38 For a range of historical and cultural reasons, the features of other wharenui vary. Location, people’s diverse choices on how to decorate or represent their own perspective, a lack of money or carvers, or the development of new designs and materials all contribute to variation. For example, not all wharenui feature pou whakairo, the intricately carved pou and tāhuhu described by the Awanuiārangi pūkenga. We have been told, in particular, that wharenui in northern regions generally do not. In some wharenui, photographs are placed on and around the ancestral poupou (posts in the walls) instead of embellishing the poupou with carving. Iwi and hapū will have their own unique accounts of the important local relationships embodied by their own wharenui. In respect of these, the reader must be guided by the knowledge held by iwi and hapū.
• 2.39 However, while there is always what the Awanuiārangi pūkenga term “performative” diversity in how people choose to represent their own perspective, basic common components are largely consistent and have meaning that is widely understood and

52. Compare Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.34]: “all tikanga must be underpinned by Iho Atua ... as is represented in the creation of whare”.
53. To illustrate broader perspectives on the way marae may be conceived non-physically, see for example: Paul Tapsell “Taonga, marae, whenua — negotiating custodianship: a Māori tribal response to Te Papa: The Museum of New Zealand” in Annie E Coombes (ed) Rethinking Settler Colonialism: History and Memory in Australia, Canada, Aotearoa New Zealand and South Africa (Manchester University Press, Manchester, 2006) 86 at 91; I H Kawharu “Sovereignty vs rangatiratanga: the Treaty of Waitangi 1840 and the New Zealand Māori Council’s Kaupapa 1983” in Andrew Pawley (ed) Man and a Half: Essays in Pacific Anthropology and Ethnobiology in Honour of Ralph Bulmer (Polynesian Society, Auckland, 1991) 573. As Kawharu, for instance, writes at 577: “[f]or political purposes, at least, any piece of ground would suffice as a marae”. Tapsell at 91 exemplifies the way in which marae may be evoked metaphorically and their protocols then followed, to support tikanga.

⁵⁴ See Doherty, Mead and Temara “Tikanga”, Appendix 1, Section Two from [2.21] and Figures 1–6.

shared.55 For example, those inside the wharenui stand between the pou, in a way that is reminiscent of the world revealed as Ranginui and Papatūānuku were forced apart:56

... with Tāne placing poles between them to keep the two separated. Having achieved this, it was the first time the siblings were able to stand tall, as is reflected in the name Te Aotūroa, commonly now used to describe the world we live in now, ‘the world of standing tall’.

• 2.40 Through features such as these, wharenui can be seen as structures connected with other realms, reminding those within their walls that they are at the interface between two worlds. To show this, we focus next on the significance of five key physical features of the wharenui:

(a) The open area in front of the wharenui, called the marae ātea.

(b) Exterior features visible facing the wharenui (kōruru, maihi, amo and raparapa).

(c) Porch, window and doorway features (mahau, matapihi, tatau, whakawae and pare).

(d) Interior structural features (tāhuhu, heke, pou and poupou).

(e) Wall panel designs (tukutuku).

Ātea, an open area in front of the wharenui

Figure 3: The ātea

55. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [1.3]–[1.4] and [1.94]; Tai Ahu (wānanga with Te Aka Matua o te Ture Internal Advisory Group, Wellington, 26 February 2023).

⁵⁶ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.10].

• 2.41 The ātea is the open space in front of the wharenui where formal ceremonies are held, such as to welcome manuhiri (visitors) or farewell those who have passed on. This space, joined to the wharenui, represents the realm of Tūmatauenga (the atua representing human unpredictability and public dispute). It contrasts with the domain of Rongo (the atua responsible for peace) inside the house.57
• 2.42 The ātea is understood to be a three-dimensional space, reaching from ground to the heavens. It links the wharenui with a sense of the wairua or spirituality that is integral to the Māori world view, involving being surrounded by another world. Since mistakes made on the ātea affect a spiritual space, ceremonies occurring there have deep meaning and significance. These kawa (protocols) are described by the Awanuiārangi pūkenga as “tikanga wrapped in tapu” and “a set of rules that are bound by sacred conditions”.58
• 2.43 Pōwhiri (welcome ceremonies) comprising detailed rules addressing all aspects of welcoming people to a marae are one example of kawa that occur on the marae ātea. Pōwhiri include karanga (a ceremonial call) to call visitors onto the ātea, whaikōrero (formal speeches) to acknowledge whanaungatanga among other matters, hongi (sharing breath by pressing noses) and kai (sharing food). These protocols facilitate removal of tapu from the visitors.59 Those issuing the karanga call forward those who have passed as well as those physically present.60 While these procedures may appear simple, they are designed to manage complex relationships and great care must be taken to ensure that they are properly observed.
• 2.44 The connection between the physical structure of the wharenui, which is joined to the ātea, and the spiritual realm that the ātea represents is indicative of how wharenui bring people into proximity with other spaces with deep meaning in Māori terms. The wharenui signifies stepping into a place having passed through a space that navigates transition and manages tensions (the ātea).

⁵⁷ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.32] and [3.62].

58. Pou Temara (wānanga held at Te Whare Wānanga o Awanuiārangi, 30 June 2022); Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.104].

⁵⁹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.8].

60. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.35]. See too Siena Yates in interview with Te Raina Ferris, explaining the karanga cry and its connection with creation narratives, pūrākau: “Karanga is the voice that resides in your womb” (12 March 2023) E-Tangata <e-tangata.co.nz>. “[Karanga is] the voice that resides not in our throat but in our womb ... it’s a powerful voice because your womb is connected to your mother’s womb which is connected to her mother’s womb and right back to Papatūānuku ... the Māori karanga sound is designed to activate the sorrow that you hold inside yourself. It opens the cavern inside yourself and lets it come out in tears.”

Exterior front-facing features — kōruru, maihi, amo and raparapa

Figure 4: The kōruru, maihi, amo and raparapa

• 2.45 When facing the wharenui, a prominent kōruru (carved figure) can be seen at the apex. This is an ancestor and a sentry, which stands watch for the people within.61 Barge boards, called maihi, descend either side of the kōruru to meet the vertical amo, a concept connected with kaiamo (pallbearers). According to the Awanuiārangi pūkenga, the amo signify carrying the ancestors, who are represented for instance in the carvings or the name of the wharenui. This further illustrates the close connection between the living and the dead in the Māori world view.62 The parts of the barge boards that extend beyond the amo are the raparapa. In combination, these features of the wharenui are said to resemble a person with outstretched arms, with kōruru being the face, maihi the arms, amo the feet and raparapa the fingers.63 The symbolism suggests both the importance of manaakitanga (extending generosity and care for others) and the identity of the wharenui as a revered ancestor. Traditionally, before the arrival of nails and modern fastening, the amo of the house would be built leaning in. In this way, the amo were critical in holding the house up and together.64

61. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.22]; and see Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuarua (Wai 262, 2011, vol 1) at 35: “Almost everything about a whare tupuna was ancestral. It would be named after an ancestor, and the image of that ancestor would be placed at the apex and most forward point of the gabled roof.”

⁶² Wiremu Doherty, peer review comment to Te Aka Mata o te Ture | Law Commission (25 November 2022).

⁶³ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.22].

64. Wiremu Doherty, peer review comment to Te Aka Mata o te Ture | Law Commission (25 November 2022). Although this is less often seen in wharenui today, some do continue this practice.

Porch, window and doorway features — mahau, matapihi, tatau, whakawae and pare

Figure 5: Mahau, matapihi, tatau, whakawae and pare

• 2.46 Those moving onto the wharenui veranda enter the mahau: the porch space beneath the matapihi (window) of the house, where special attention is again given to the relationship with those who have passed on. At some marae, tūpāpaku (deceased) may lie there in state during the tangihanga. The casket of a deceased may be passed through the matapihi, being the passageway for those who have left this world.65 The tatau (door) to the wharenui is the passageway for the living. Carved pou surrounding the tatau are known as whakawae, and above them is the pare (the doorway lintel). Figures carved into the whakawae represent the intergenerational network of people and leaders, past, present and future.66 Commonly there will be a figure at the centre of the pare with a thread from between its legs ending in the mouth of figures located at the edge of the pare. The figure is a reference to Māui’s fatal attempt at immortality.67 It signifies the presence of Hinenuitepō, signalling that those passing beyond the doorway are entering an ancestral realm and “another world, a world that connects us to our gods and ancestors”.68 Poupou (a word that can be used to mean “old folk” in addition to pillars or posts) standing in the wharenui walls provide a further example of ancestors’ presence. The mouths of these figures are cut off or obstructed from view, suggesting that these figures are looking into our world through portals.69

⁶⁵ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.23].

⁶⁶ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.24].

⁶⁷ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.24].

⁶⁸ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.26] and Figure 3.

⁶⁹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.26].

Interior structural features — tāhuhu, heke, pou and poupou

Figure 6: Tāhuhu, heke, pou and poupou

• 2.47 Proceeding through the wharenui doorway, those entering see before them a line of central pou, each joined to the ridge pole called tāhuhu. The tāhuhu begins outside, above the mahau, and is commonly carved with two figures representing Ranginui and Papatūānuku.70 Within the wharenui, adornment of the tāhuhu with repetitive koru designs that disappear out the back end of the wharenui remind those present that there was a time before them and there will be a time after.71 The heke or rafters falling from the tāhuhu represent the children of Ranginui and Papatūānuku. The heke land on poupou, each representing key ancestors and connected to the ground and the living.72 Wharenui therefore structurally reiterate the connections between the known world and Ranginui and Papatūānuku, through ancestors and the atua.73 The Awanuiārangi pūkenga explain that, within the wharenui:74

Symbolically, we are located at the feet of our ancestors — the ancient ones will be represented in carvings, and the more recent will have pictures hung between the poupou.

⁷⁰ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.29].

⁷¹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.29].

⁷² Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.30].

⁷³ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.2].

⁷⁴ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.33].

• 2.48 The design of wharenui suggests that those within them are accountable to their ancestors and responsible for ensuring the practice and performance of mātauranga are correct. As the Awanuiārangi pūkenga write, “having the authors of the known world present changes the accountabilities”.75

Wall panel designs — tukutuku

Figure 7: Tukutuku

• 2.49 As Chapter 1 explains, tukutuku panels are a traditional feature of wharenui interior walls. While tukutuku may not be present in all wharenui, when present these decorative panels are positioned between the poupou. Standing vertically, tukutuku also symbolically ascend from the ground towards celestial realms. In this way, the location of tukutuku within the wharenui makes links both to atua and to the ancestors. Tukutuku are made of latticework, lashed together with stitched patterns by two workers passing strands through the open spaces of the lattice that divides them. The tukutuku surrounding people in the wharenui therefore wrap them in ideals and imagery of connection and co- operation.76 As Wiremu Doherty, one of the Awanuiārangi pūkenga, considers, “the tukutuku connect us”.77 In te ao Māori, tukutuku signify connection with ancestors and other realities.

⁷⁵ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.3].

76. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Tau Ihu o te Waka a Maui: Report on Northern South Island Claims (Wai 785, 2008) at 37; Erenora Puketapu-Hetet Maori Weaving (Longman, Auckland, 1999) at 29–30.

⁷⁷ Wiremu Doherty, peer review comments to Te Aka Mata o te Ture | Law Commission (14–15 February 2023).

TE TĀHUHU: HOW WHARENUI CONNECT WITH THE KAUPAPA OF THIS STUDY PAPER

• 2.50 Te tāhuhu is the ridgepole of the wharenui. In this final section, we consider how the wharenui expresses tikanga Māori values connected with the kaupapa (purpose) of this Study Paper. As Jackson considered, tikanga itself may be likened to the wharenui.78 They are both structures protecting people from disorder and imbalance.
• 2.51 Our review of the features of wharenui has shown how they embody a space between past and present, this world and that of the ancestor-gods, atua. Symbolically, those positioned inside the wharenui therefore stand at the threshold of a portal to other realms. The Awanuiārangi pūkenga have described the significance of the wharenui as an in- between space, through which “[u]pon entering the whare, we are entering the portal that connects us to worlds, and levels of consciousness”.79 As they emphasise, an orientation such as this surrounded by mātauranga and immersed in te ao Māori is a first move towards building understanding of tikanga. In the context of this Study Paper, the wharenui can serve as a reminder for those engaging with tikanga that (even if only metaphorically) they too are in such a space, touching te ao Māori and surrounded by watchful guardians.
• 2.52 More immediately, wharenui, which “hold the ancestral memory of the tribe”, are physical structures that implicitly link people’s present-day practice and decision making to the ancestors.80 Their imagery reminds those within of their everyday obligation “to maintain the appropriate practices and relevant knowledge drawn from the walls of the house”:81

The house is not only symbolic in that it is given by the gods, but it also contains the knowledge from them on how we should live our lives. This requires that great care must be taken to protect and maintain this knowledge and those who choose to access it. It was understood knowledge was power and care needed to be taken to ensure those that accessed it and use it were appropriately instructed on the duty of care required.

• 2.53 In this way, wharenui reflect a responsibility to ensure that mātauranga and tikanga are respected. They guide people’s conduct by underlining the care to be taken in relation to that knowledge.
• 2.54 To reiterate a point made earlier, acceptance of a Māori world view is not required to make sense of these responsibilities. Instead (provided their connection to a Māori world view is understood), they might be grasped at the level of a general principle of conducting oneself with both respect and caution whenever engaging with tikanga. Implicitly, positioning oneself within the wharenui also alludes to where the wharenui stands — that is, upon the marae where “[t]he entire system ... is governed by tikanga”.82

78. Moana Jackson The Maori and the Criminal Justice System: A New Perspective | He Whaipaanga Hou (Department of Justice, Study Series 18, 1987–1988, part 2) at 43.

⁷⁹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.26] and illustration at Figure 5.

⁸⁰ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.60].

⁸¹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.34], [3.3] and [3.47].

⁸² Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.38].

• 2.55 The physical construction of wharenui also expresses tikanga. Tikanga concepts represented in the physical design of the wharenui include whakapapa,83 whanaungatanga,84 and kotahitanga (unity).85
• 2.56 The familial connections that, according to Māori, formed the world, are represented with the tāhuhu standing for Ranginui and the heke (rafters) representing his children. The ancestral poupou, or posts, in the walls touch whenua (the ground, placenta) and their mother, Papatūānuku. In this way, wharenui physically conceptualise whakapapa. Whakapapa is “[t]he rationale that defines what parts of the house fit together”.86
• 2.57 Temara explains that wharenui design can also be seen as an expression of the concept of collective unity, kotahitanga:87

... the whare has a single room — there are no elevated sections or separate rooms. It is open and on the same level where everyone can see each other to support the singular collective of ‘kotahitanga’ (unity). This notion of kotahitanga is a fundamental component of te ao Māori — it speaks to the collective being united and being one.

• 2.58 Everyone from the collective, Temara emphasises, “can enter and be in the presence of the atua and ancestors that performed the historically important deeds for the collective

... all are welcome and have access”.88

• 2.59 Again, these are further ways in which the wharenui points to values that can guide behaviour. It expresses the “notion of things being connected”.89 A widely sung waiata composed by Dr Hirini Melbourne illustrates the structural significance of wharenui and the critical work that the house does to connect people:90

Ko Ranginui e tū ake nei, hei tuanui Ranginui stands above us, a roof Ko Papatūānuku e takoto nei hei whāriki Papatūānuku lies beneath us, a mat

Ko te reo me ngā tikanga hei tāhuhu Language and tikanga forming the ridgepole Ko te iwi hei poutokomanawa And the people the main support

Ko te whare whakahirahira o te iwi e This is the most important house of the people Hei whakairi i ngā tūmanako Is for hanging the hopes

I ngā wawata i ngā moemoeā The aspirations and the dreams

Ko tēnei te wā o te wao nui tūtakitahi This is a time of the forest to meet as one Ko tēnei ko koe ko Tānewhakapiripiri This is you, Tānewhakapiripiri

⁸³ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.17].

⁸⁴ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.7].

⁸⁵ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.36] and [3.76]–[3.77].

⁸⁶ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.17].

⁸⁷ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.36].

⁸⁸ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.76].

⁸⁹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.7].

90. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.70]. We extend our gratitude to Dr Melbourne’s whānau for allowing us to share this waiata.

• 2.60 This chapter has described how, according to Māori narratives, wharenui are “created by the gods ... as anchor points for us”.91 We have focused primarily on connections that wharenui make in a metaphysical sense with an ao Māori world view — with wairua, creation stories, and the realms of the ancestors and the atua. However, as the waiata above suggests, wharenui embody relatedness in other ways, including expressing connections with the whole of the natural world by making the heavens (Ranginui) and the whenua (Papatūānuku) parts of their architecture. The wooden ancestral posts holding up the roof and rafters of the house remind people of being one with Tāne, as are the forests and all things of the forest. The heke, symbolising Tāne’s siblings, are implicit reminders of familial links to all other parts of the natural world and forces that shaped the world, such as the sea (Tangaroa), seismic events (Rūaumoko) and environmental winds and storms (Tāwhirimātea).92 In these multiple ways, the physical designs of wharenui stand as reminders about principles such as unity, ancestral connection and being as one with the natural world, relevant to managing relationships and understanding tikanga today.

CONCLUSION

• 2.61 While we have lent heavily in this chapter on the allegorical and symbolic relevance of wharenui, they are also places of important practical relevance. Wharenui remain today a customary place for wānanga (knowledge sharing) where important relationships are explained and past knowledge is available to draw on when contentious issues arise. Challenges are taken to the marae to resolve, where the thoughts and influence of past decision makers help inform the decisions that must be made for today.93 For readers of this Study Paper, introducing themselves to the ideas held within the wharenui represents a step towards knowledge sharing and a Māori-centred shift. In summary, in this chapter we have shown three ways in which the metaphor of the wharenui can serve as an entry point into a fuller and more authentic understanding of tikanga.
• 2.62 First, the wharenui is, according to pūrākau, the place through which knowledge is gained and where it is housed. It is a purpose-built portal between two systems: the ground (Papa) and Ranginui’s many heavens. Therefore, it reaches to ancestral times and spaces.
• 2.63 Second, the wharenui shows how mātauranga and tikanga Māori might be expressed (for instance, visually or allegorically). Therefore, it holds knowledge for us now.
• 2.64 Third, the wharenui expresses tikanga principles capable of taking us onwards to the continuing work that this Study Paper aims to support of understanding tikanga and tying it into a legal context. Consistent with this, we rely upon the wharenui framework again in Chapter 3, where it continues to be an overarching frame around which to build knowledge as we turn to address tikanga concepts.

⁹¹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.60].

⁹² Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.63].

⁹³ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.39].

CHAPTER 3

Tikanga as a system of norms

[Tikanga Maori] needs to be more than just a grab bag of amorphous concepts and principles if it is to have credibility as a coherent, workable system of law within the Maori community and wider New Zealand society. It needs to be understood as having internal coherence and consistency. This in turn, requires the articulation of a structured framework within which tikanga principles can be applied. It also requires decision-makers capable of properly appreciating and applying those principles.

Associate Professor Nin Tomas1

INTRODUCTION

• 3.1 In this chapter, we explain some important and common tikanga concepts, showing how they function as a coherent, integrated system of norms not a mere “grab bag” of principles or values.2 We also explain how tikanga operates in Māori life in jural ways. By this, we mean that it relates to powers, rights, duties, liabilities and other interests or restrictions that govern relationships. By seeing tikanga as a system and by providing a jural analysis of the important purposes of tikanga concepts and how they may be grouped, our approach to tikanga in the chapter differs from most explanations. We have adopted this approach because, as Associate Professor Nin Tomas suggested, articulating a “structured framework within which tikanga principles can be applied” gives a foundation for engagement between tikanga and state law.3
• 3.2 We begin the chapter by explaining why recognising tikanga as a coherent system is important and using jural language is appropriate. We discuss the importance of beginning in Māori reality when considering tikanga and reiterate the significance of

1. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 33. Whereas Tomas uses “tikanga Maori” and “Maori custom law” interchangeably in her thesis, we are, as identified in Chapter 1, preferring “tikanga” and “tikanga Māori”.
2. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 33.
3. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 33.

inviting readers to ground themselves within the wharenui to orient their thinking in a Māori world view. Then, comprising most of the chapter, we introduce some main tikanga concepts that are also in active legal use, describing them as categories of norms.

• 3.3 When explaining tikanga concepts, our priority has been to ensure that the explanations reflect mātauranga. We have used several methods for doing so.
• 3.4 First, as we outline the meaning of each concept, we draw on tikanga expertise from throughout Aotearoa New Zealand utilising sources that go beyond formal scholarship. Following a brief general explanation, we set out what we have termed “expressions” of each concept. These “expressions” sections are compiled from the review by Natalie Coates and Horiana Irwin-Easthope of tikanga expert evidence presented in court and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal (Waitangi Tribunal) proceedings, published in Appendix 2.4 Their research brings to light iwi and hapū perspectives that enrich our explanations of each concept. They also confirm the shared nature of these tikanga concepts, revealing a widely held and consistent understanding.
• 3.5 Second, as we explore the jural aspect of each tikanga concept, we rely on the ways in which Māori jurists and other eminent tikanga scholars describe the rights, powers, authority or obligations that are connected with the concept. Their explanations show the parts these tikanga concepts play in a system of norms.
• 3.6 Third, tikanga is ultimately concerned with the practicalities of how to provide order and justice in a complex, ever-changing landscape. Therefore, to ground the theoretical explanation of tikanga, we also provide examples of tikanga in action. These serve as illustrations of how the concepts can be practically understood.
• 3.7 Finally, the chapter reconnects with the wharenui, discussing how whakapapa (genealogical connection) sets boundaries around tikanga concepts. Implicitly, the wharenui structurally symbolises or embodies whakapapa, reinforcing its importance to an understanding of tikanga.

UNDERSTANDING TIKANGA AS A SYSTEM

• 3.8 It is important to understand that tikanga is a complete system of principles for “the right or correct way of doing things”.5 These principles order Māori affairs and so regularly influence behaviour that they have been referred to as Māori custom.6 Tā Edward Taihakurei Durie refers to tikanga principles as conceptual regulators.7 Reverend Māori

4. Natalie Coates and Horiana Irwin-Easthope “Kei raro i ngā tarutaru, ko ngā tuhinga o ngā tupuna | Beneath the herbs and plants are the writings of the ancestors: tikanga as expressed in evidence presented in legal proceedings” (paper prepared for Te Aka Matua o Te Ture | Law Commission, 2023). Subsequent references to this paper in this chapter are abbreviated as follows: Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2.
5. See: Bishop Manuhuia Bennett quoted in Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 16; see also Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 421, citing seminar with Bishop Manuhuia Bennett, Bishop Whakahuihui Vercoe and Te Ariki Morehu (23 March 2000, unpublished transcript Te Pū Wānanga Transcript No 2, Te Mātāhauariki Research Institute).
6. Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 3–4; David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 8.

⁷ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 4–5.

Marsden considered them “first principles”.8 Te Ahukaramū Charles Royal refers to “kaupapa”, a term he identifies as representing “movement of a base of values into one’s understanding and perception of the world”.9 As Professors Tā Hirini Moko Mead and Tā Pou Temara have said:10

... when a new matter or issue arises for resolution, recourse is always had to the fundamental principles that underlie tikanga as well as drawing on historical precedent and how tikanga has been recognised in similar situations.

• 3.9 We agree with Tomas that “there is a need for a better understanding of how [tikanga] fits together as a coherent, principle-based system of law”.11 In this Study Paper, we are deliberately setting out a framework for understanding tikanga principles that reaches beyond the common description of tikanga as values-based and context-dependent.12 Tikanga is sensitive to context and evolves according to circumstance. However, more can be said about how its concepts work together to govern and guide behaviour. Showing how core concepts are connected both explains tikanga as a normative system and safeguards tikanga by recognising that it functions as an integrated, comprehensive whole.13 As Te Aka Matua o te Ture | Law Commission (the Commission) noted in 2001:14

As always in tikanga Māori, the values are closely interwoven. None stands alone. They do not represent a hierarchy of ethics, but rather a koru, or a spiral, of ethics. They are all part of a continuum yet contain an identifiable core.

• 3.10 Perceiving the component parts of tikanga as integrated can safeguard tikanga by ensuring that it is not treated as simply a “grab bag” from which to extract isolated values.15 Those engaging with legal or legislative directives to consider individual tikanga

⁸ Māori Marsden in Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden

(Estate of Rev Māori Marsden, Ōtaki, 2003) at 66.

9. Te Ahukaramū Charles Royal “An organic arising: an interpretation of tikanga based upon the Māori creation traditions” in Ngā Pae o te Māramatanga Tikanga Rangahau Mātauranga Tuku Iho | Traditional Knowledge and Research Ethics Conference Proceedings 2004 (Ngā Pae o te Māramatanga, Auckland, 2005) 206 at 221.
10. Hirini Moko Mead and Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [33], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.37]; see also David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 9.
11. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 34.
12. David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 9; Joan Metge “Commentary on Judge Durie’s ‘Custom law’” (paper presented to Te Aka Matua o te Ture | Law Commission, 1996, with errata 2020); Vivian Tāmati Kruger Statement of evidence, 2 June 2020 at [38], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [1.6]. See also Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [74] where the majority noted: “[i]t is dangerous to apply tikanga principles, even important ones, as if they are rules that exclude regard to context”;

Doney v Adlam [2023] NZHC 363 per Harvey J at [103]: “tikanga will always be suspicious of unbending rules”.

13. See generally Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006); Caren Fox “Ko te mana te utu: narratives of sovereignty, law and tribal citizenship in the Pōtikirua ki Te Toka-a-Taiau district” (PhD Thesis, Te Whare Wānanga o Awanuiārangi, 2023); Māmari Stephens “‘Kei a koe, Chair!’: the norms of tikanga and the role of hui as a Māori constitutional tradition” (2022) 53 Victoria University of Wellington Law Review 463 (describing five legal norms of tikanga Māori and their interaction).

¹⁴ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 29.

15. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 33.

principles will benefit from engaging with tikanga holistically and understanding the work that tikanga concepts do within the overall structure of norms.

• 3.11 An appreciation of the analytical coherence and consistency of tikanga also helps to dispel continuing doubts about the legitimacy and efficacy of tikanga as a source of regulation and of identifiable rights and obligations.16 Tikanga has the coherence and consistency that are vital for any legitimate regulatory system. We agree with Tomas that this emphasis on tikanga as an integrated system is not inconsistent with the proposition that tikanga is also evolutionary and pragmatic. Perceiving tikanga as a framework does not alter its inbuilt flexibility:17

The fear that such a framework would lead to rigid application of tikanga principles as fixed rules, is to misunderstand the nature of principle-based decision making. Principles by their nature, are flexible tools that can be applied to a variety of different situations to produce significantly different outcomes.

USING JURAL LANGUAGE

• 3.12 In this Study Paper, we adopt the language of norms to describe tikanga. This is consistent with the approach of Associate Professor Māmari Stephens who argues:18

Māori processes and self-definition are perhaps better respected on their own terms by the word “norm” or “legal norm” (rather than “law”, “lore”, and “custom”) to describe behaviours in dynamic Māori communities.

• 3.13 We also explain how tikanga can be considered in orthodox jural terms. By “jural”, we mean that tikanga involves powers, rights, duties, liabilities and other interests or restrictions that govern relationships. There is nothing unusual about using jural language and concepts to describe tikanga. On the contrary, tikanga experts, authoritative texts and jurists often do so. Mana, for example, is commonly referred to as “authority”, “power” or “right”.19 There are frequent references to the “law” of tapu (prohibition,

16. See Anthony Willy “The Peter Ellis decision — and whether Maori customs have any place in the common law” (1 November 2022) New Zealand Centre for Political Research <www.nzcpr.com>; John Robinson “Tikanga in law: what does it mean?” (20 June 2021) New Zealand Centre for Political Research <www.nzcpr.com>; Graham Taylor “We need to talk about tikanga” (10 March 2023) Capital Letter <www.capitalletter.co.nz>.
17. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 33.
18. Māmari Stephens “‘Kei a koe, Chair!’: the norms of tikanga and the role of hui as a Māori constitutional tradition” (2022) 53 Victoria University of Wellington Law Review 463 at 470.
19. See for example Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 178–182; Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 69; David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 11.

restriction).20 Moana Jackson applied the concept of “tipuna title” to explain iwi and hapū relationships to whenua (land):21

Tipuna title may be described as the physical and spiritual interests that collectively vested in Iwi or Hapū as part of their mana or rangatiratanga in regard to whenua. It is title that exists within what may be termed “relational interests” that is the interests that inhered in the relationships of a particular whakapapa and the willingness of our people to develop existing or potential relationships with others.

• 3.14 That said, casual or careless use of jural language to describe tikanga can also be misleading.22 This is because terms such as “power”, “right” or “title” have different connotations in a Māori context. It is important not to simply presume that tikanga translates into norms exactly equivalent to those of non-Māori law. Tikanga is closely influenced by a Māori world view in which assumptions resting on notions such as the importance of individual rights or private ownership of whenua do not hold true. For example, as Jackson explained, individual alienable land ownership does not correspond with the tikanga-based relational interests in respect of whenua:23

The relational rights that flow from tipuna title are not the same as Pakeha property rights. Those rights are predicated on an individual exclusivity. Relational rights presuppose individual entitlements within a collective exclusivity.

• 3.15 Accordingly, we caution against wrongly transplanting tikanga concepts directly into established common law categories to make sense of them. Tikanga concepts are grounded in norms that differ from dominant non-Māori norms. They may have broader relational, ethical, moral and spiritual elements. It is important to understand this complexity when seeking to engage with tikanga.

TIKANGA CONCEPTS — OUR APPROACH

• 3.16 In the sections below, we consider a core group of concepts that are central to tikanga as a system, grouping them in five categories:24

(a) Concepts of connection: whakapapa and whanaungatanga, which we describe as

structural norms. All of te ao Māori (the Māori world) is shaped by reference to these

20. See for example Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 404; Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 5 and 174; Ani Mikaere The Balance Destroyed (Revised ed, Te Wānanga o Raukawa, Ōtaki, 2017) at 38; Makereti Papakura The Old-Time Maori (Victor Gollancz, London, 1938) at 25.
21. Moana Jackson “Tipuna title as a tikanga construct re the foreshore and seabed” (March 2010) <www.converge.org.nz>; see also Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 40–41.
22. Arnu Turvey “Te ao Māori in a ‘sympathetic’ legal regime: the use of Māori concepts in legislation” (2009) 40 Victoria University of Wellington Law Review 531. See also Catherine J Iorns Magallanes “The use of tangata whenua and mana whenua in New Zealand legislation: attempts at cultural recognition” (2011) 42 Victoria University of Wellington Law Review 259; Mihiata Pirini and Anna High “Dignity and mana in the ‘third law’ of Aotearoa New Zealand” (2021) 29 New Zealand Universities Law Review 623.

²³ Moana Jackson “Tipuna title as a tikanga construct re the foreshore and seabed” (March 2010) <www.converge.org.nz>.

24. Given the depth in which each of these concepts is explained later in the chapter and also our wish to build a nuanced understanding of them in this chapter, we depart here from the Study Paper’s general approach of providing simple definitions for all of the concepts named. For each, a full explanation follows.

concepts, and the relationships that they describe establish an underlying normative frame.

(b) Concepts of equilibrium or balance: mauri, utu and ea. In Māori society, these concepts function as prescriptive norms, which must be maintained.

(c) Concepts relating to the status of an entity: mana, tapu and noa. These order Māori society and are significant in sustaining and protecting mauri (which refers to life force, or the essential quality and vitality of all things). We consider mana, tapu and noa are relational norms that achieve regulative purposes. Relationships are organised and interactions defined by reference to these concepts.

(d) Concepts of responsibility, which can be identified as associated norms: kaitiakitanga, manaakitanga, aroha and atawhai. These are closely connected with the concepts of mana and whanaungatanga.

(e) Processes and procedures, or kawa. These are significant in upholding all of the norms we refer to above. They administer tikanga as a system and are means of regulating mauri, mana, tapu and noa. We give four examples: pōwhiri (a welcome), rāhui (a restriction), muru (a ritual of claiming compensation) and karakia (ritual prayer).

• 3.17 This list of concepts is not intended to be exhaustive. We have needed to select a group of concepts on which to focus.25 In the 2001 Study Paper Māori Custom and Values in New Zealand Law, the Commission explained five important values underpinning tikanga: whanaungatanga, mana, tapu, utu and kaitiakitanga.26 In selecting the present list of concepts, we have been guided by a central set of tikanga concepts identified by Professors Wiremu Doherty, Tā Hirini Moko Mead and Tā Pou Temara of Te Whare Wānanga o Awanuiārangi (the Awanuiārangi pūkenga),27 and the extensive review of expert tikanga evidence given in Waitangi Tribunal and court proceedings undertaken by Coates and Irwin-Easthope.28 In particular, the latter has served to check that the concepts on which we focus below are broadly shared, widely present and in active use in modern proceedings.

TE WHARENUI AND AWARENESS OF WAIRUA

• 3.18 Before we turn to explore the tikanga concepts, we again ask the reader to make the mental shift to a mātauranga-immersed space. As Chapter 2 proposes, the wharenui provides a useful anchor point for those seeking to engage with Māori knowledge and understand tikanga. We have reviewed how, according to Māori perspectives, wharenui connect with other parts of Māori existence, surpassing the physical world. They reflect in multiple ways the notion of a multi-layered reality (wairua) which is intrinsic to te ao Māori and vitally important to understand. As Tomas puts it, “[t]he Maori worldview

²⁵ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001).

²⁶ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 28–40.

27. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023), Section Three. See Appendix 1.

²⁸ See Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2.

stresses the importance of te Ao Wairua (the spiritual realm) as being the source of all things”.29

• 3.19 In Chapter 2, we stress that it is not necessary to adopt this symbolism to engage with it. Nevertheless, for those engaging with tikanga, awareness that in a Māori world view “there is no rigid distinction between the physical and the spiritual realms” is needed.30 Marsden explains that:31

... the Māori does not, and never has accepted the mechanistic view of the universe which regards it as a closed system into which nothing can impinge from without. The Māori conceives of it as at least a two-world system in which the material proceeds from the spiritual, and the spiritual (which is the higher order) interpenetrates the material physical world of Te Ao Mārama.

• 3.20 For readers who are new to tikanga, imaginatively orienting themselves within the wharenui serves as a reminder to be aware of these other aspects of a Māori world view. Wairua — the constant sense of multiple, spiritually-imbued dimensions — is the context in which tikanga lives. Aspects of tikanga are concerned with sustaining wairua and the connections that it represents. To illustrate how this can have practical implications for those engaging with tikanga concepts in a legal context, in resource management proceedings the meaning of environmental “effects” from a Māori standpoint may include effects that arise in other dimensions.
• 3.21 Later in the chapter, we will also suggest that the whakapapa that wharenui symbolise is important to hold in mind, because it sets parameters when interpreting and applying tikanga concepts.

STRUCTURAL CONCEPTS OF CONNECTION: WHAKAPAPA AND WHANAUNGATANGA

• 3.22 The closely related concepts of whakapapa and whanaungatanga, describing relationships, frame Māori existence. Each of these concepts reflects the importance in te ao Māori of all things being connected.32 By establishing connections, whakapapa and whanaungatanga define identity, status and the terms of relationships. They prescribe standards and behaviours designed to maintain relationships. We consider them to be structural norms of foundational importance to tikanga. They provide the underlying normative frame.

29. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 66 and 60 (“Wairua is Maori existence writ large”), and generally 53–60. For others’ consideration of the importance and meanings of wairua within te ao Māori, see further: Cleve Barlow Tikanga Whakaaro: Key Concepts in Māori Culture (Oxford University Press, Auckland, 1994) at 152; Māori Marsden in Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 47; Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 8; Rima Eruera Statement of evidence, #F23 at [112], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.70]; Khylee Quince s 27 report, 18 September 2018 at [9], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.58]; Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 10–11.

³⁰ Ani Mikaere Colonising Myths — Māori Realities: He Rukuruku Whakaaro (Huia Publishers, Wellington, 2011) at 318.

31. Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 20.
32. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.7].

Whakapapa

• 3.23 In broad terms, whakapapa can be understood as a way of mapping knowledge. It connects all life, and is central to Māori society and to governing relationships in Māori society.33 The most well-known aspect of whakapapa is that it records genealogical layers and notes connections to place and community, in ways that may reach beyond human ancestors. However, reflecting the fact that in addition to “genealogy” whakapapa may also mean to “recite in proper order”,34 whakapapa is also a means of making other links between events and ideas and in this way providing explanations. For example:35

When we map and track the exploits of our ancestors’ whakapapa it helps establish a chronology of events and practices that are critical to mapping the knowledge systems of the iwi. Here, whakapapa maps the epistemology of the collective. It maps when a particular practice occurred, where it occurred, and who were the pivotal participants.

• 3.24 Through this chronology, whakapapa “links the people and the practices of the people to the landscape” — for example, by noting significant sites where incidents occurred.36 It is a means of mapping how significant events have been “wrapped into the knowledge system for the collective iwi”.37 As Professor Tā Mason Durie considers, whakapapa is the fundamental basis of the Māori knowledge system.38

Māori connection with all things starts with the whakapapa (genealogy) of creation.39

The world and everyone in it is part of a huge interlocking family tree.40

EXPRESSIONS OF WHAKAPAPA

³³ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 27.

³⁴ Te Aka Māori Dictionary <maoridictionary.co.nz>.

35. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [2.37].
36. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.66].
37. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.66]; see too Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuarua (Wai 262, 2011, vol 1) at 237–239 and Te Taumata Tuatahi (Wai 262, 2011) at 127.
38. Mason Durie Statement of evidence, #K14 at [2.2], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.4].
39. Tamati Waaka Statement of evidence, 4 January 2017 at [20], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.4].

⁴⁰ Hirini Moko Mead and Pou Temara Statement of tikanga, 31 January 2020 at [91], as cited in Ellis v R (Continuance)

[2022] NZSC 114, [2022] 1 NZLR 239.

Whakapapa connects us spiritually to our past and defines the present.41

Whakapapa necessitates a focus on relationships: between people and their non-human relatives; between past, present and future generations. It reminds us that relationships must be carefully managed because everything in our world is interconnected.42

Whakapapa, the cultural template through which we understand our descent and ancestral relationships, refers to a process of placing in layers, which reminds us that relationships between and amongst us individuals and social groupings, are layered upon each other and extend as wide as our whānau and intergenerational connections reach ...43

Everything from weather events, the stars, planets and clouds, fish, birds, trees and flowers, stones and volcanic events, wellbeing, life, illness and death can be explained as a result of the creation narrative interlinking all of these components in a web of whakapapa.44

... we use the concept of whakapapa both to analyse into separate parts and to bind the parts together as a whole entity of creation, of which we see ourselves are also a part ... our cultural concept in the land begins in Papatuanuku and her resources seen as a whole ... but we go on to categorise the parts of the whole in respect to their uses and functions. But when we go out to make use of the resources of nature, we do not forget the whakapapa binding all together, at the same time as we distinguish the resources of land and sea.45

Whakapapa is the common thread that weaves the hapū together to form the iwi.46

Reliance on a whakapapa framework to make sense of our existence requires us to value every person as part of an endlessly expanding whole. This is not to be confused with some feel-good notion of equality or sameness; rather, it recognises that the particular qualities of every person contribute to the vitality of the whakapapa network in its entirety.47

41. Moe Milne Statement of evidence, #A62 at [131], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.4].
42. Ani Mikaere Statement of evidence, #A17 at [45], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.4].
43. Leonie Pihama Statement of evidence, #A19 at [18], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.2].
44. Tahu Potiki Statement of evidence, 23 December 2016 at [4.6], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.11].
45. Henare Rakiihia Tau Affidavit, 24 November 1989 at [74], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.11].
46. Tipene O’Regan Statement of evidence, #B9 at [4]–[5], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.29].
47. Ani Mikaere Statement of evidence, #A17 at [44], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.41].

Whakapapa: a jural perspective

• 3.25 Ani Mikaere describes the importance of whakapapa in two ways. Whakapapa is a way of making sense of the world. It is also a behavioural guide:48

... whakapapa embodies a comprehensive conceptual framework that enables us to make sense of the world. It allows us to explain where we have come from and to envisage where we are going. It provides us with guidance on how we should behave towards one another and it helps us to understand how we fit into the world around us. It shapes the way we think about ourselves and about the issues that confront us from one day to the next.

• 3.26 According to Tomas, whakapapa has three primary functions:49

First, it provides an ordered process within which other ideas and concepts can be structured into a coherent format; second, it acts as a vehicle for the conveyance of wairua to the rest of creation, and third, it establishes a hierarchy of authority as a guideline to the formation of all relationships.

• 3.27 Explaining the normative significance of whakapapa, Mikaere says:50

Whakapapa necessitates a focus on relationships: between people; between people and their non-human relatives; between past, present and future generations. It reminds us that relationships must be carefully managed because everything in our world is connected. Failing to nurture key relationships will result in imbalance which will ultimately be to the detriment of all.

• 3.28 As Jackson argued:51

The ties of whakapapa which bound the collective together provided the precedents and jurisprudential framework that rationalised the rules for individual and collective behaviour as well as the various sanctions used to ensure compliance ... Whakapapa also provided precedents for the exercise of political power which was essential to the law’s effective functioning.

• 3.29 Jackson also connected whakapapa to relational interests or “rights”:52

Our law is a way of maintaining relationships, where processes and entitlements are based upon kinds of obligations associated with the receipt of any gift. We sometimes define these entitlements as “rights”, however these do not stem from the grant of a political body but from the rites of our birth and the whakapapa that makes us unique. They began at the moment of birth, as the first act in every child’s life was the burying of his or her whenua ... a means of proclaiming their right to stand on their land and proclaiming the reciprocal relationships they would have within their whānau, Hapū and Iwi.

⁴⁸ Ani Mikaere Colonising Myths — Māori Realities: He Rukuruku Whakaaro (Huia Publishers, Wellington, 2011) at 285–286.

49. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 69.
50. Ani Mikaere Statement of evidence, #A17 at [45], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.5].
51. Moana Jackson Brief of evidence, 10 January 2005 at [93]–[94], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.6].
52. Moana Jackson Statement of evidence, 24 April 2012 at [19], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.6]. The usage of inverted commas above in respect of “rights” reflects Jackson’s own.

• 3.30 Mead, speaking in the context of competing claims to fisheries Treaty settlement assets, gives examples of whakapapa-based birth rights:53

(a) The right to be a Māori and the attributes of being Māori.

(b) The right to an identity and whakapapa as a member of the whānau, the hapū, the iwi and the waka.

(c) The right to share in the tribal estate, including rights to succeed to interests of the parents.

(d) The right to use marae.

(e) The right to be buried in the urupā.

(f) The right to be listed on the hapū and iwi beneficiary roll.

(g) The right to share in the benefits of any settlement to the hapū or iwi.

• 3.31 While Mead’s list of whakapapa-based rights is not complete, it illustrates both the practical and jural importance of whakapapa. Whakapapa confirms a person’s membership within the kin group from which that person’s mana and tapu is derived.54 Whakapapa may also determine a person’s standing to perform certain roles.55
• 3.32 Consequently, whakapapa has direct implications for how people should behave and are entitled to behave — in other words, for people’s rights and duties. Whakapapa confers an entitlement to belong and identifies those who do not.56 As Professor Tamati Muturangi Reedy stated:57

... in Māori terms, one is defined by one’s ancestors. To translate a common Māori phrase

— “Ko tātou ngā kanohi me ngā waha kōrero o rātou ma kua ngaro ki te pō — we are but seeing eyes and speaking mouths of those who have passed on”. The reverence for the bones and indeed the memory of the ancestors is directly reflected in the centrality of whakapapa or genealogy to all structures within Māori society.

• 3.33 However, importantly, whakapapa can also be flexible. As Durie says:58

Whakapapa were not used to constrain individual or group status but to enlarge it, and did not limit future direction but expanded on the possibilities.

53. Hirini Moko Mead Brief of evidence, 25 February 1998 at [22], in Te Runganui o te Upoko o Te Ika Association (Inc) & Ors v The Treaty of Waitangi Fisheries Commission & Others CP 122/95.
54. Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 27– 28; Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 111–120.
55. See Te Riaki Amoamo Affidavit, 25 January 2022 at [9], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.4]: Amoamo (Te Whakatōhea) refers to tikanga being “the law in our area [which is] underpinned by whakapapa, because without whakapapa you have no right to claim, speak for or take care of the whenua or its resources”. See too McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 164.
56. McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 164.
57. Tamati Muturangi Reedy Brief of evidence, 25 February 1998 at [37(b)], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.34].

⁵⁸ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 5.

• 3.34 Dr David V Williams and Joseph Williams consider:59

The most notable orators are always able to emphasise commonality of whakapapa and interconnectedness, thus playing down the separateness between groups.

• 3.35 Professor Ranginui Walker also explained that “Māori society was simply too dynamic to sustain rigid hapu collectives”.60 Whakapapa therefore can expand or contract to deal with changing circumstances. In these ways, whakapapa illustrates the dynamic qualities of tikanga.

Whanaungatanga

• 3.36 Whanaungatanga, meaning kinship or a sense of familial connection and relationships, is a value reflecting “the intent of ensuring all things within te ao Māori are connected and understood” and that “maintaining the relational components with our environment is ... equally important as maintaining [them] with each other and our ancestors”.61
• 3.37 Whanaungatanga is closely linked with whakapapa, so that it can be difficult to distinguish between them. However, one explanation is that whakapapa maps lineal connections and layers of connection, while whanaungatanga demands that we maintain them. Whanaungatanga also makes and maintains connections beyond the genealogical descent lines of whakapapa. Tikanga scholars emphasise that the essence of whanaungatanga is its inter-relational breadth and inclusiveness. For example, Williams maintains that “the boundary between one hapu and the next or one iwi and the next is always broad and grey rather than black and white”.62 Connections which must be maintained extend to the living and non-living, to past and present, and beyond human to ecological domains. Clarifying the differences of whakapapa and whanaungatanga, Tomas considered that:63

... whanaungatanga is widely used to refer to the responsibilities inherent in kinship relationships, while whakapapa is used to represent the genealogical connections that form the basis of those relationships.

• 3.38 She also noted the egalitarian nature of whanaungatanga, considering that it “highlights ‘belonging’ and ‘inclusiveness’ amongst members of a kin group, irrespective of authority

59. David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 14.
60. Ranginui Walker Brief of evidence, 25 February 1998 at [4.1(b)], in Te Runganui o te Upoko o Te Ika Association (Inc) & Ors v The Treaty of Waitangi Fisheries Commission & Others CP 122/95.
61. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.11].
62. Joseph Williams “He aha te tikanga Maori” (unpublished paper presented to Te Aka Matua o te Ture | Law Commission, 1998) at 11.
63. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 78; see also Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 68; Margaret Anne Kawharu Statement of evidence, 2 June 2020 at 13–14, in Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601.

or ranking”.64 Dr Carwyn Jones likewise notes the tendency and capacity of whanaungatanga to embrace new relationships and new contexts:65

The concept of whanaungatanga may be grounded in genealogical connections, but today the term is applied to other types of relationships where reciprocal obligations apply. Eminent anthropologist Dame Joan Metge has described how the root concept of whānau (extended family) has acquired new meaning over the course of the twentieth century: it is now widely applied to various types of communities and groups and no longer only to those with actual blood ties.

EXPRESSIONS OF WHANAUNGATANGA

Whanaungatanga is “the way we bring our whakapapa to life” and “the way we relate to our kin”.66

... the defining principle is whanaungatanga, or kinship. In te ao Māori, all of the myriad elements of creation — the living and the dead, the animate and inanimate — are seen as alive and inter- related.67

Whanaungatanga is focused on “the maintenance of relationships”.68

The more inclusive kinship ethic of whanaungatanga offsets the more exclusive linear factional loyalties derived from the descent lines of whakapapa.69

... [t]he whanaungatanga principle goes beyond just whakapapa and includes non-kin persons who become like kin through shared experiences.70

Through the tikanga of whanaungatanga, iwi and hapū support each other and held reciprocal obligations to assist each other in maintaining their mana.71

64. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 78.
65. Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 68.
66. Chris Winitana Statement of evidence, 4 June 2017 at [72], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.51].
67. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuatahi (Wai 262, 2011) at 23.
68. Walter (Wati) Ngakoma Ngamane Statement of evidence, 13 October 2020 at [21], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.51].
69. Margaret Anne Kawharu Statement of evidence, 4 December 2020 at [6], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.50].
70. Hirini Moko Mead and Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [97], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.58].
71. Tamati Waaka Statement of evidence, 4 January 2017 at [69]–[81], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.57].

Within Māori whānau, social control is modelled through the concept and practice of whanaungatanga — kinship or familial obligations. Boundaries and behavioural expectations are set and enforced by the collective, with particular roles and responsibilities for guidance and leadership vesting in parents, aunts and uncles and grandparents.72

Whanaungatanga is “the glue that holds the Māori world together”.73 Whanaungatanga is an essential principle of the Māori world.74 Whanaungatanga is the idea that makes the whole system make sense.75

Whanaungatanga: a jural perspective

• 3.39 As Jones explains, whanaungatanga encapsulates the centrality of relationships to Māori life and to Māori legal traditions:76

Grounded in genealogical connections, whanaungatanga is central to individual and community identity and the rights and obligations associated with that identity.

• 3.40 Durie expresses the jural character of whanaungatanga in this way:77

Whanaungatanga (kinship) was demonstrative of:

• the primacy of kinship bonds as determiners of action;
• the primacy of whakapapa (genealogical tables) in social reckoning and rights formulation;
• the right of individuals to determine, develop and validate their individual identity and status within the chosen group;
• the basis for hapu allegiance; and
• the interconnectedness of the Māori people.

72. Khylee Quince s 27 report, 18 September 2018 at [8], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.62].
73. Hirini Moko Mead and Pou Temara Statement of tikanga, 31 January 2020 at [96], as cited in Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239; see also Te Rua Rakuraku and Donald Kurei Joint affidavit, 21 January 2022 at [11], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.64] where Pou Temara says whanaungatanga is ”the glue that holds the Māori world together and sets the parameters of the relationships between and amongst all things”.
74. Walter (Wati) Ngakoma Ngamane Statement of evidence, 13 October 2020 at [21], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.63].
75. Te Rua Rakuraku and Donald Kurei Joint affidavit, 21 January 2022 at [11], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.64].
76. Carwyn Jones New Treaty New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 66–68; see also David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 11 and 13.

⁷⁷ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 5.

• 3.41 According to Tomas, the responsibilities associated with whanaungatanga are at the heart of its meaning.78 Harry Mikaere also emphasises whanaungatanga-based responsibilities:79

Whanaungatanga is the essence of being Māori, and connections between people and widespread relationships with the spiritual and natural worlds are linked through whakapapa. The relationships with the natural world (land, water, coastal marine area, air, plants, animals etc) are bound together by mutual responsibilities.

• 3.42 Whanaungatanga responsibilities drive tikanga behaviours, expressed in norms that we discuss later in this chapter such as kaitiakitanga (guardianship) and manaakitanga (generosity). Joseph Williams and David V Williams point out that individual and collective rights and standing are conditional on fulfilling one’s responsibilities:80

... tikanga Māori emphasised the responsibility owed by the individual to the collective. No rights enured if the mutuality and reciprocity were not understood and fulfilled.

• 3.43 The Awanuiārangi pūkenga give another example of the responsibilities that whanaungatanga creates between people, explaining that whanaungatanga involves collective responsibility for individual wrongdoing. According to Mead and Temara:81

... when a hara (wrong) is committed it not only impacts the individuals involved, both offenders(s) and victim(s), but the broader collectives of these individuals including whānau, hapū and iwi ... a community is always responsible for their wrongdoers because they are kin. It also means that a community is impacted as victims when offending occurs.

• 3.44 Their paper (found at Appendix 1) gives further examples of this principle, relating to responsibilities for fraud and responsibilities to intervene and redress domestic violence. 82

Whakapapa and whanaungatanga in action

• 3.45 The centrality of whakapapa and whanaungatanga to all Māori relationships is echoed in the way that these concepts can be seen at work every day on the marae. For example, identifying whakapapa connections and building whanaungatanga between manuhiri (visitors) and the haukāinga (the people of the marae) are important purposes of pōwhiri (welcoming) protocols.
• 3.46 To illustrate the significance of whakapapa and whanaungatanga, Temara shared with us an account relating to the Mātaatua marae in Rotorua, a Tūhoe marae built within the rohe (area) of Ngāti Whakaue (a Te Arawa group). It shows how the iwi of Te Arawa and Tūhoe are drawn together through whakapapa both in its narrow genealogical sense and in the events of their shared history. Events which had occurred between these two tribal

78. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 78.
79. Harry Mikaere Brief of evidence, 13 October 2020 at 27, in Ngāti Whātua Ōrākei Trust v Attorney-General [2023] NZHC 74.
80. David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 12. See also Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 40.
81. Hirini Moko Mead and Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [98]–[99], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.61].
82. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [5.2]–[5.6].

groups moved Ngāti Whakaue to gift land to Tūhoe as a place for them to build a marae in Rotorua:83

Mātaatua is a Tūhoe marae in Rotorua. The land that it stands on is a gift from Ngāti Whakaue to Tūhoe. This happened in the early years of last century. During that time, the people of Tūhoe used to go to Rotorua Hospital for medical attention. They would arrive with nowhere to live while being treated, or waiting for treatment. Those admitted to hospital had whānau camped nearby the hospital so that they could visit their sick relations. Ko te pō kau anake. They were a sorry sight. They brought food, but cooking was a problem because of the health regulations of the Rotorua Council. The rangatira of Ngāti Whakaue saw their plight and discussed how they might mitigate the predicament of Tūhoe.

In coming to a decision about gifting some land to Tūhoe, the Ngāti Whakaue leaders recalled the whakapapa connections between Tūhoe and Ngāti Whakaue. They remembered the celebrated family of Te Tokotoru a Kōkāmutu, the Triumvirate of Kokamutu. They were Tamahore, Te Purewa and Tumatawhero. These three brothers were the great leaders of Tūhoe at that period. They led many successful battles against their foe to the east, to Taupo, and against their Te Arawa relatives at Pukekaikaahu in Rerewhakaitu. At that battle the brothers decided that the best course of settling differences was not through full scale war with their mother’s people that would involve hundreds of warriors on both sides. They preferred to settle scores through a tūmatatahi, a duel of toa [warriors]. Te Purewa volunteered to fight for Tūhoe. He had such a reputation as a warrior that both his people and enemy alike regarded him as Te Pakihiwi Kaha or the strong shoulder. Te Arawa also had such a warrior called Te Wahakaikapua. However, the duel did not eventuate. The insults exchanged were too much to bear and they closed in battle ... Many warrior leaders of Rangitihi and supporting hapū were killed in that fight including Te Rangikatukua and others. They were decapitated and the heads were preserved and carried back to Ruatāhuna. It was a victory for Tūhoe and achieved in no small measure by the leadership of the sons of Kōkāmutu of Te Arawa.

In time Te Arawa practised for a return bout and then marched with an intimidating force to Ruatāhuna to avenge the defeat at Pukekaikāhu. They arrived at the pā of Te Aihurangi at Ruatāhuna and camped at the foot of that pā. Inside were the gathered hapū of Tūhoe. Other hapū were also on the march to join them against Te Arawa. Hineiturama, a woman of noble birth stood at the head of the force and cried out to the defenders to bring out the heads of the Arawa chiefs so that they may tangi over them. The heads were brought out and stuck on stakes on the ground. Te Arawa stood there before the heads in mournful tangi which moved the observing defenders. Then Hineiturama began a kaioraora, a free form haka of derision aimed at Tūhoe who were behind the parapets of their pā.

[haka omitted]

Such was the ferocity of the kaioraora that it attracted the admiration and respect of Tūhoe. They immortalised that kaioraora and the expertise of Te Arawa in that art form with the terse words Whatitiri ki te rangi, ko Te Arawa ki te whenua (Thunder in the heavens, Te Arawa on the land). That pepeha coined by Tūhoe has defined Te Arawa as great speakers, great haka people and great at karanga and waiata.

Meanwhile, Tūhoe who had left the safety of their pā and were outside watching and admiring the performance, approached the Arawa force with outstretched arms to show that there were no weapons. In the tradition of the tangi, they wept together and later set up a tatau pounamu [a metaphor for lasting peace]. All the preserved heads were returned to Te Arawa and the tatau pounamu was consummated with the exchange of gifts.

⁸³ Abridged from an account shared with us by Pou Temara (May 2023).

Having stayed awhile to enjoy the hospitality of the hosts, Te Arawa left to return to Rotorua. They had not long departed when the virulent and warlike Tamakaimoana of Maungapōhatu appeared ready to make war with Te Arawa. When told that a tatau pounamu had been made with Te Arawa, Tamakaimoana refused to recognise it and set off in pursuit. The Tūhoe leaders in the pā then did something that can only happen in Māori culture. They sent a swift runner called Te Rehe by a short cut to warn the retreating Arawa that Tamakaimoana were in pursuit of them. This act is called pūrahorua. At a place called Te Whatu o Mawake Te Arawa ambushed Tamakaimoana and defeated his force. Many leaders were lost in that fight. That defeat of Tamakaimoana could be viewed as the interest that Tūhoe paid Te Arawa, on top of the gifts of taonga of the tatau pounamu. Te Arawa did not forget.

...

These events of their shared history, drawing Te Arawa and Tūhoe together through whakapapa, are the reason that moved Ngāti Whakaue to gift the land to Tūhoe as a place for them to build a marae where they may stay when in Rotorua. Today, at the marae, Tūhoe maintain a continuing relationship with Ngāti Whakaue. At major hui Ngāti Whakaue and our Arawa uncles and aunties are always part of our paepae ... we regard them as part of us. We from Mātaatua are also invited by Ngāti Whakaue to be part of their paepae at their major hui on their marae. Tūhoe perform and keep alive that kaioraora composed by Hineiturama of Te Arawa even though it is a derogative haka aimed at Tūhoe ... Conversely, Te Arawa keep alive and perform the Tūhoe haka that challenged Te Arawa before the battle of Pukekaikāhu.

[haka omitted]

• 3.47 Illustrating the significance of whakapapa and whanaungatanga in a jural context, an excerpt below from an 1893 Native Land Court proceeding shows how whakapapa and whanaungatanga were relevant to determining entitlements to land:84

Q. Why is it the list you are upholding have equal rights?

1. Because there are two claims, ancestry and conquest, the rights over the conquered land that is the eastern and southern parts are equal. The descendants of the ancestors who came here in the Mataatua canoe occupied from Tikirau (Cape Runway) to Ngā Kuri a Whārei at Tauranga — all are descended from Toroa and Awanuiārangi and derive their name from the latter. Ngāti Awa who are not descendant from Māhu whose ancestors took no part in the conquest are the persons to whom we have allowed an 1/8th share. Those who are descendant from Māhu and whose ancestors also took part in the conquest we have allowed 20 shares. All the persons who have no claim to the land accept being called Ngāti Awa were put in by Penetito. When he gave his evidence at this Court he was unable to bring out these people in his genealogy — therefore I say all these people should be swept out of this land. The conclusion arrived at by Ngāti Awa committee was that all those who were not descendant from the ancestor and whose ancestor took no part in the conquest should each receive an 1/8th share also those of Hāmua and Warahoe who were put in by Rangitūkehu should receive the same proportion.

Those of Warahoe and Hāmua who married into Ngāti Awa let it be for Ngāti Awa to say. Penetito has said that the conquest of this land has been made by his hapū. I deny that emphatically. I say it was made by the hapū of Ngāti Awa i.e. by Te Pahipoto, Te Tāwera, Ngāti Tūwharetoa, Ngāi Tamaoki, Ngā Maihi, Ngāti Ahi and by certain persons of Ngāti Pukeko, two or three I think — Ngāi Te Rangihōuhiri, Ngāi Taiwhakaea, Ngāti Ikapuku, Ngāti Hinanoa, Ngāti Hokopū, Te Patuai and small

⁸⁴ 36 Judge Scannell MB 100–101.

hapū and the hapū called Ngāti Awa. Apanui was the principal man — another hapū of Apanui was called Ngāti Matewaru. They took part in the conquest. That was Te Putarera’s hapū also Te Patutātahi, Ngāi Tāpiki. These are all.

Q. All of these are entitled to the conquered lands?

A. Yes.

Q. In equal shares?

A. Yes, in equal shares.

17. Are there three classes in the owners? (1) Those entitled to a share in the whole block. (2) Those entitled to a share in the conquered land. (3) Those who have no claim at all except through “aroha”.
1. Yes. The people of Warahoe, Hāmua and those who cannot claim from the ancestor or by conquest are the third.

Summary: whakapapa and whanaungatanga

• 3.48 Whakapapa and whanaungatanga ensure that the order of things is properly understood and that connections to the natural world, place and people are acknowledged, maintained and nurtured. In these ways, whakapapa and whanaungatanga function as underlying structural norms within tikanga. We see this as their primary normative and jural significance. The connections understood and upheld through whakapapa and whanaungatanga establish the framework and basis for interests in Māori society, including powers, rights and duties.

PRESCRIPTIVE CONCEPTS THAT MAINTAIN BALANCE: MAURI, UTU AND EA

• 3.49 In this section, we discuss the concepts of mauri, utu and ea. These are concepts that relate to equilibrium or balance and play a key role in Māori life. Mauri refers to the vitality and wellbeing of an entity. It is prescriptive to the extent that tikanga makes demands to protect and maintain this essence or wellbeing. Similarly, utu also demands action or behaviours to constantly restore and maintain balance. Utu may enable the settled state of ea to be achieved.

Mauri

• 3.50 Mauri has been variously explained as life essence,85 “life force connection”,86 and “the distinctive nature all things have”.87 As Makereti Papakura explained:88

Maori believed that nothing in this earth existed without its mauri and that if this were violated in any way, its physical foundation was open to peril or exposed to great risk. If

85. Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 83; Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 239 and 241.
86. Tahu Potiki Statement of evidence, 23 December 2016 at [8.1]–[8.10], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.326].
87. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.23]; and see Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 83.
88. Makereti Papakura The Old-Time Maori (Victor Gollancz, London, 1938) at 181; see also Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 86.

the mauri of the forest were violated, the trees and plants would not be able to produce in abundance, but fruits would be scarce, and there would be few birds. With the mauri ora of man, if this is violated in any way, the thought is that with the loss of spiritual mauri, he is left without protection.

• 3.51 The Awanuiārangi pūkenga consider that mauri reminds us “to look to the connections that bind us”.89 If the connection that must be sustained is lost, mauri will be dormant or diminished, diminishing or altering one’s existential being.90 Mauri can be given to objects. For instance, even today, Māori may still place a stone embodying mauri beneath a wharenui or other new building to reflect its kaupapa or purpose.91 In another example we will discuss below, rāhui pou (a post marking a restricted area) may be imbued with mauri.

EXPRESSIONS OF MAURI

All beings in this realm possess a mauri, or a life force, they have something to say and something to share, the sea, the fish, the shellfish, the crabs, the shells, the pebbles and gravel, the rocks and boulders, the sand and earth, the trees, the birds, and the winds. They speak to each other just as we communicate daily.92

Mauri is the actual life force connection between the gods and earthly matter. It is stated that all things have a mauri including inanimate objects so it can be found in people, animals, fauna, fish, waterways, rocks, mountains. The mauri is ... also the generator of the health of a person or place.93

[Mauri embodies] familiar notions of wellness, health, levels of vitality, energy, spirituality, awareness, identity, integrity and alertness and engagement beyond the self.94

A flourishing mauri is evidenced by vitality, spiritual enlightenment, enthusiasm, emotional strength, a capacity to engage — all experienced within social and physical environments that align with human resilience.

A languishing mauri has the opposite associations: low energy, despondency, uncertainty, shame, a reluctance to engage, and environments that aggravate personal bleakness.95

89. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [1.86].
90. Makereti Papakura The Old-Time Maori (Victor Gollancz, London, 1938) at 180–181; Tahu Potiki Statement of evidence, 23 December 2016 at [8.1]–[8.10], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.327].
91. Nathan Kennedy and Richard Jefferies Kaupapa Māori Framework and Literature Review of Key Principles (2nd ed, International Global Change Institute, Hamilton, 2009) at 57–58.
92. Te Ringahuia Hata Affidavit, 29 January 2020 at [65], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.328].
93. Tahu Potiki Statement of evidence, 23 December 2016 at [8.1]–[8.10], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.326].
94. Mason Durie Statement of evidence, 23 December 2016 at [22]–[24], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.327].
95. Mason Durie Statement of evidence, 23 December 2016 at [22]–[24], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.327].

Mauri is also a metaphysical value that can be managed by karakia conducted by experienced tohunga.96

... the significant habitats of our flora and fauna house the mauri and spiritual essence of our ancestors.97

Hypothetically, the mauri of water could be negatively affected through human involvement. For example, by diverting water or extracting it so much that it is depleted.98

... tikanga are in place to focus on the caring for the mauri (life force) of the waahi mataitai kai and to ensure various kaitiaki and descendants of the owners of the food gathering areas are alerted to any dangers.99

Mauri: a jural perspective

• 3.52 Mauri is a complex concept to explain jurally. It is rarely referred to in statutes outside of Treaty settlement legislation.100 However, it arises in the resource management context through association with the concept of kaitiakitanga as the foremost obligation of kaitiaki (guardians).101 Kaitiaki “have an intrinsic duty to safeguard the mauri of the environment”.102 Their responsibility is to “ensure that the mauri of ... taonga remains healthy and our ability to do that through generations reflects directly on our mana”.103 If “mauri is diminished, or gone, the kaitiaki are not fulfilling their responsibility”.104
• 3.53 Mauri therefore gives rise to obligation or responsibility, including the requirement to maintain a physical connection to whenua.105 If the connection is not maintained through regular presence and resources are not drawn from the whenua, the mauri of the place

96. Desmond Tatana Kahotea Statement of evidence, 28 October 2016 at [9.6], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.327].
97. Haami Piripi Brief of evidence, #P3 at [36], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.327].
98. Hemana Eruera Manuera Statement of evidence, 29 March 2019 at [46], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.328].
99. Te Kou Rikirangi Gage Affidavit, 21 February 2020 at [123], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.28].

¹⁰⁰ But compare the Natural and Built Environment Bill 2022 (186–1), cl 5 (system outcomes).

¹⁰¹ Resource Management Act 1991, ss 7(a), 2.

102. David Topia Rameka Statement of evidence, 4 June 2017 at [21] as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.331].
103. Agnes Te Haara Clarke Statement of evidence, August 2001 at [4], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.339].
104. Hohepa Joseph Mason and Te Kei (O Te Waka) Wirihana Merito Brief of evidence, 29 April 2019 at [67]–[68], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.341].
105. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.24].

will die.106 Emphasising the way in which the mauri of (in this example) water and people are connected, “[the] mauri of the people remains as strong as the mauri of the wai”.107 The responsibility to maintain mauri renders it a normative force. The Awanuiārangi pūkenga suggest the normative force of mauri when they explain that, when objects embodying mauri such as rāhui pou have been given a particular purpose, “that [purpose] must be honoured by all”.108 They also describe the responsibility of Te Urewera descendants:109

... to maintain a physical presence and be seen to draw resources from Te Urewera. If they do not, the mauri of Te Urewera will die. It will think it is no longer of value or importance to its people and therefore of no importance. There is an obligation being referred to here. While mauri describes the distinctive character of all things, it also notes the importance of what we are required to do to enhance and support the mauri of all things. That is, we must be present and be seen to be engaging in all manner of practice and processes of te ao Māori.

Mauri in action

• 3.54 To illustrate that mauri can be prescriptive in a practical way, the following three examples show how neglecting mauri was seen to result in doom, dire consequence or punishment.
• 3.55 Explaining that abuse of mauri creates imbalance and “would spell doom”, Marsden wrote:110

Allow me to conclude with a special reference to the ‘Mauri’ of the toheroa [a type of shellfish] ... I remember at a special meeting of Ngāitakoto where the elders expressed misgivings about the Mauri of the Toheroa being made ‘noa’ and being depleted in the near future because they were being [sic] commercialised, a grave ‘hara’ or sin against the Atua for a freely bestowed gift. They predicted that in less than 20 years the toheroa would disappear because the Mauri would remove itself, and the removal of Mauri or life-force, would spell doom to the toheora. For them, it was not so much the use or even over-use of the resource but rather the abuse and misuse of the mauri and its tapu. It would create an imbalance in the fragile network of the eco-systems of the Oneroa-a-Toohe and even the abundance of Schnapper and other seafoods would be seriously depleted.

• 3.56 Hemana Manuera describes how an ancestor named Kahungunu was punished for disrespecting mauri. Kahungunu faced immediate retribution, followed by ongoing consequences for his son:111

Kahungunu, while fishing whakaaronui, disrespected tikanga by failing to throw the first catch back to Tangaroa by way of koha [an offering]. Kahungunu was slapped with a tāmure (snapper) by his brother. To resolve this misdeed, Kahungunu named his son

106. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.24].
107. Hohepa Joseph Mason and Te Kei (O Te Waka) Wirihana Merito Brief of evidence, 29 April 2019 at [40], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [5.46].
108. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.29].
109. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.24].
110. Māori Marsden Brief of evidence, #C17 at 8, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.328].
111. Hemana Eruera Manuera Statement of evidence, 29 March 2019 at [22], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.64].

Tūtāmure which means ‘pricked on the face by snapper fins’. Hemana uses this as an example of Kahungunu addressing his disrespect of the mauri of Tangaroa by the naming of Tūtāmure as perpetual living evidence of his misdeed and disrespect.

• 3.57 Implicitly, the consequences of the misdeed may be understood to pass on to following generations.
• 3.58 Bevan Taylor speaking from the perspective of Maungaharuru-Tangitū hapū says:112

The gathering of kai and resources has a reciprocal obligation on the Hapū as kaitiaki (guardians). Tangitū has a mauri (life force), so if we do not look after or respect Tangitū in accordance with our kawa and tikanga, its mauri will be detrimentally affected and there will be dire consequences for our Hapū.

• 3.59 As each of the above examples show, lapses in respect for mauri are “hara” or wrongs. They are understood to be followed by continuing consequences affecting people’s mana (authority, esteem) and their wellbeing.

Utu and ea

• 3.60 Utu is “the action undertaken for reciprocity”.113 Utu maintains harmony and balance and “conveys the ethic of striving to achieve balance in all things”.114 The action taken can either be positive or may take the form of retribution. Tāmati Kruger explains utu as: 115

... a virtue that considers how one should respond, solve or acknowledge. At the heart of utu is the idea that balance must be achieved by reciprocity, whether by compensation or by revenge. Utu is usually proportionate to the action that has caused a particular state to be unbalanced, and is always directed at repairing and enhancing whanaungatanga.

• 3.61 According to the authors of He Hīnātore ki te ao Māori:116

The manifestation of utu through gift exchange established and maintained social bonds and obligations. However, if social relations were disturbed, utu would be a means of restoring balance.

• 3.62 Utu thus plays a role in maintaining relationships and nurturing social cycles, which as Durie writes were “as critical to survival as the maintenance of the cycles of nature”.117 Utu is also linked to mana. To show and reciprocate generosity enhances mana and strengthens relationships. Conversely, “the failure to give or receive utu diminished the mana of both parties and placed the relationship in jeopardy”.118

112. Bevan Maihi Taylor Affidavit, 11 August 2020 at [34], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.331].
113. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.85].
114. Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 43; David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 18.
115. Vivian Tāmati Kruger Statement of evidence, 2 June 2020 at [7]–[8], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.278].
116. Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 74; see also Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 467–468.

¹¹⁷ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 6–7.

¹¹⁸ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 68.

• 3.63 The concept of ea refers to a resolved or settled state.119 Utu may contribute to facilitating ea. The authors of Te Mātāpunenga note the social and legal significance of ea as a state that arises once a process or series of transactions has been completed.120 Mead, tying the concept to relationships, says that it is “a state of satisfaction where a sequence has been successfully closed, relationships have been restored, or peaceful interrelationships have been secured”.121
• 3.64 The Awanuiārangi pūkenga link ea principally to acceptance that certain issues have been resolved (more so than any actions taken). Illustrating this, a story was shared with us in wānanga showing the power of ea. One of those present recounted a childhood event in which a returned commander of the 28th Māori Battalion visited the narrator’s grandmother. Her sons had been among those who died under his command. The commander lowered himself to his knees and apologised to the kuia who had lost her sons. After a time, she said “Kua ea — it is settled”.122 As Mead writes, “it is important to be able to say: ‘Kua ea’”.123

The principle of reciprocity and the fulfilment of obligation underpins all Māori social interaction and exchange. The concept of utu encompasses both positive and negative reciprocity within a single holistic system in Māori thinking and a fundamental driver of Māori life. Emphasis is placed on maintaining relations.124

For everything given and taken, a reciprocity and return of some kind is required. Those who give, gain mana, those who receive must restore the balance ... If the balance is not restored then compensation must be taken.125

EXPRESSIONS OF UTU

119. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.78].
120. Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 58.

¹²¹ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 374.

122. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.79].

¹²³ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 32.

124. Margaret Anne Kawharu Statement of evidence, 4 December 2020 at [30]–[33], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.276].
125. Margaret Anne Kawharu Statement of evidence, 4 December 2020 at [30]–[33], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.276].

In tikaka [tikanga], the process of utu, in the sense of reciprocal balance, is not finished until a solution is reached.

... all the parties have to work together to find a solution that can be digested by everyone who belongs at the table.

All those who are affected must be part of the process and ultimately accept the solution.

Negotiations must continue until all parties accept the process has concluded.126

[Utu] invokes notions of payment, reciprocity, and balance in particular.127

... sometimes to achieve that balance, it requires a greater response than what was the actual loss too ... it’s a relative term ... the balance isn’t just a ‘one for one’ balance, sometimes the balance, the restoration of balance, required more than the original hara to fix the scales in the proper place as it were.128

• [T] he cornerstones of a healthy Māori identity [are] the need for balance in the constituent elements of Te Taha Tinana (the physical aspect), Te Taha Wairua (the spiritual aspect), Te Taha Whanau (the family aspect) and Te Taha Hinengaro (the psychological aspect).129

EXPRESSIONS OF EA

... who determines ea ... those who have suffered determine when kua ea.130

In tikanga, a state of ea could not be reached unless all affected parties ... were involved in the process of resolution — this would otherwise be inconsistent with the principles of whanaungatanga and mana. In our opinion, a state of ea could not be reached where whenua is involved unless tangata whenua were involved and respected in the process.131

... reconciliation should never imply subordination of one by another... It was to recognise the place of both and seek a way to rebuild the relationships and so in that sense a specific hara, a specific wrong is part of that much wider context of the need for relationship building.132

126. Tipene Gerard O’Regan Affirmation, 17 September 2020 at [49]–[52], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.277].
127. Peter Adds and Paul Meredith Notes of evidence, undated at [21]–[22], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.280].
128. Peter Adds and Paul Meredith Notes of evidence, undated at [23], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.281].
129. Khylee Quince s 27 report, 18 September 2018 at [7], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.287].
130. Peter Adds and Paul Meredith Notes of evidence, undated at [69], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.285].
131. Jacinta Arianna Ruru and Mihiata Rose Pirini Joint affirmation, 14 September 2020 at [81], [83] and [85], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.291].
132. Moana Jackson Notes of evidence, 3 May 2012 at [12], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.269].

The concept of “hara” at a simplified level means: the transgression of tapu; the commission of a wrong; and the violation of tikanga resulting in an imbalance. This requires a restoration of balance or the achieving of a state of “ea”.133

Where a hara has been committed there is an intergenerational need for a state of ea.134

Utu involves a process which seeks to find a way to restore equilibrium or balance. In tikanga, this process must continue until ea is reached. Ea may not result in all affected parties feeling happy with the outcome but there is an acceptance of the process and its outcome.135

The ultimate point is to get to ‘ka ea’. If the utu does not meet the hara, and the mana has not been repaid, then whakamā will ensue.136

Utu and ea: a jural perspective

• 3.65 Dame Joan Metge has explained that “[u]tu was one of the most important ordering principles in traditional Māori society”.137 Explaining the normative significance of utu, Durie says that:138

Utu concerned the maintenance of harmony and balance. It was fundamental to most Māori tikanga and thinking, governing social relationships, the creation and maintenance of reciprocal obligations, the conceptual avenging of death, the appeasement of killings, the punishment of wrongdoing, the maintenance of the cycles of nature, gift exchange, the formation of controls, the maintenance of alliances, the performance of fiduciary obligations and the like. Utu underpinned the essential ‘give and take’ nature of the Māori social and legal order.

• 3.66 Utu therefore demands action or behaviours to constantly restore and maintain balance:139

Reciprocity protocols were formulated for commerce, social intercourse, behavioural controls, and peace-making, all encapsulated in utu. The weighting to reciprocity disclosed

¹³³ Hirini Moko Mead and Pou Temara Statement of tikanga, 31 January 2020 at [60]–[61], as cited in Ellis v R (Continuance)

[2022] NZSC 114, [2022] 1 NZLR 239.

¹³⁴ Hirini Moko Mead and Pou Temara Statement of tikanga, 31 January 2020 at [68], as cited in Ellis v R (Continuance)

[2022] NZSC 114, [2022] 1 NZLR 239.

135. Jacinta Arianna Ruru and Mihiata Rose Pirini Joint affirmation, 14 September 2020 at [81]–[82], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.275].
136. Maanu Paul Cultural advisor report, 5 July 2012 at [20], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.288].
137. Joan Metge Tuamaka: The Challenge of Difference in Aotearoa New Zealand (Auckland University Press, Auckland, 2013) at 19.

¹³⁸ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 6.

¹³⁹ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 6–7.

the Māori worldview that life’s basic needs and survival depended on co-operation and interaction between persons and peoples.

• 3.67 Mead helpfully outlines a three-stage framework for engaging with utu and ea — take- utu-ea.140 A take (pronounced ta-ke) is a reason for action. Utu determines what action is necessary to achieve balance and maintain the relationships involved. Once the appropriate action is completed and balance is achieved, there will be a state of resolution or ea.141
• 3.68 What is needed to satisfy utu will vary, although there are well-known valid responses to particular take.142 It is important that an appropriate utu is chosen for the nature of the take. Choosing the wrong pathway to resolution could be deemed inappropriate and thus fall short of the desired outcome.143

Utu and ea in action

• 3.69 Mead and Temara use a story from Tūhoe to explain and illustrate the steps taken to compensate for a hara (wrong) that had occurred and restore balance or settlement (ea) between the parties, achieving successful resolution:144

One day a kuia (elderly woman) went and visited a family.

When the kuia got to the home, the dog of the family that she was visiting attacked her. The dog drew blood from her leg and tore her flesh.

The owners of the dog rushed outside, took the dog away and then tended to the injuries of the kuia.

It was a hara on behalf of the dog owners for the dog to have attacked the kuia. The shedding of blood is significant as it meant there was a transgression of tapu (as blood is sacred). The offence also resulted in mana became [sic] imbalanced.

The owners of the dog knew that they had committed a hara and that there had been a breach of tikanga.

In response, they went to their waka huia (treasure box) and brought out a pounamu (greenstone) that had significant value. They gave this to the kuia as compensation for the hara.

The kuia had every right to impose a muru (ritual plundering and restorative justice process that entails the redistribution of wealth). However, she accepted the pounamu as payment for the wrong that had been committed.

This meant that the issue became ea (satisfied, settled, mana rebalanced).

140. Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 31; see also Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 75.

¹⁴¹ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 35–36.

142. Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 35. See also Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.85]: Doherty gives examples of he hohou te rongo, muru, and pākuha as known examples of utu being taken.

¹⁴³ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 35.

144. Hirini Moko Mead and Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [60], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.271].

Summary: mauri, utu and ea

• 3.70 Mauri, utu and ea are each powerful prescriptive norms. They demand action or behaviours to sustain mauri (vitality and wellbeing), to maintain utu (reciprocity) and to achieve ea (a settled state). Together, they strive for equilibrium or balance in all things.

RELATIONAL CONCEPTS CONNECTED WITH STATUS: MANA, TAPU, NOA

• 3.71 In this section, we discuss three relational concepts that are concerned with status: mana, tapu and noa. These concepts identify the status of an entity and signal the ways in which others may engage with that entity. We use the term “entity” because mana and tapu are not confined to living humans.145
• 3.72 Mana, tapu and noa are fundamental in managing and regulating Māori society.146 We consider that they are important relational norms. In other words, they are norms that generate a type of jural status and a corresponding jural relationship. As the authors of He Hīnātore ki te ao Māori state: “[i]n the Māori world virtually every activity, ceremonial or otherwise, has a link with the maintenance of and enhancement of mana and tapu”.147

Mana

• 3.73 Mana is a broad concept “combining notions of psychic and spiritual force and vitality, recognised authority, influence and prestige, and ... power and ability to control people and events”.148 Mana has also been described as the force of the ancestors at work in everyday matters.149 It remains such a force in contemporary Māori society, connected “to every form of activity within Māori society and generated through collective relationships”.150 The Awanuiārangi pūkenga note that mana includes authority given by the collective to individuals to maintain order for iwi, hapū and whānau. Those who have the people’s support and are recognised as having skills to maintain the integrity of the knowledge and processes of the people have mana.151 As others emphasise, mana is connected to whakapapa.152

145. Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 51–52 and 57. See also Peter Adds and Paul Meredith Notes of evidence, undated at [25], as cited in Coates and Irwin- Easthope “Beneath the herbs and plants”, Appendix 2 at [4.161].

¹⁴⁶ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 1.

¹⁴⁷ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 55.

148. Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 154. See also H W Williams A Dictionary of the Maori Language (GP Publications, Wellington, 1992) at 172; Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 36.
149. Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 1 and 58.
150. Leonie Pihama Statement of evidence, #A19 at [13]–[14], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.156].
151. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.32].
152. For accounts of mana placing principal significance on whakapapa: Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 52–53; Annette Sykes “The myth of tikanga in the Pākehā law” (2021) 8 Te Tai Haruru Journal of Māori and Indigenous Issues 7; compare also Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 306–311: mana whenua is a process of

• 3.74 There are different forms or aspects of mana.153 For example, Cleve Barlow identifies the following four aspects:154

(a) Mana atua — mana of the various atua Māori (ancestor-gods), passed on to all whom they created.

(b) Mana tupuna — sourced from ancestry.

(c) Mana whenua — acknowledging the power and authority sourced in whenua (meaning both placenta and land). Today, mana whenua is used to describe hapū authority over a place. Barlow refers to another meaning: the ability or power of Papatūānuku through whenua to produce bountiful life.155

(d) Mana tangata — a person’s mana.

• 3.75 This is not a complete list. For example, another form of mana is mana wāhine (mana of women).156 Koroua (elder) McCully Matiu and Professor Margaret Mutu describe the essence of mana as “the power to sustain life”.157
• 3.76 As explained by Royal, mana is also more nuanced than simple power and can arise from different sources, including “through acts of generosity and wisdom ... harmonising of life and the community”.158 We discuss below how mana is linked to responsibilities and how it is conditional on responsibilities being fulfilled.

establishing one’s connections; Te Ahukaramū Charles Royal “A modern view of mana” in Raymond Nairn and others (eds) Ka Tū, Ka Oho: Visions of a Bicultural Partnership in Psychology: invited keynotes: revisiting the past to reset the future (New Zealand Psychological Society, Wellington, 2012) 195.

153. Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 60–61. See further Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.162]–[4.170]; see also Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 90– 95; McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 157–158.
154. Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 60–61; Joseph Williams “He aha te tikanga Maori” (unpublished paper for Te Aka Matua o te Ture | Law Commission, 1998) at 11–12.
155. Compare particularly Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 61–62 with regard to the nexus of mana with life-giving capability; see also McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 167: “[t]here are many forms and aspects of mana, of which one is the power to sustain life”.
156. See generally Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134 and see too the ongoing Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal inquiry: Mana Wāhine Kaupapa (Wai 2700, commenced December 2018).
157. McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 167.
158. Te Ahukaramū Charles Royal “A modern view of mana” in Raymond Nairn, Phillipa Pehi, Roseanne Black and Waikaremoana Waitoki (eds) Ka Tū, Ka Oho: Visions of a Bicultural Partnership in Psychology: invited keynotes: revisiting the past to reset the future (New Zealand Psychological Society, Wellington, 2012) 195 at 202–203: “People of mana usually have insight, they can see possibilities and understandings that others might not. People of mana are also harmonisers.”

EXPRESSIONS OF MANA

Mana is multi-dimensional and requires an understanding of wider tikanga Māori and the relationships within which we locate ourselves. Mana is connected to every form of activity within Māori society and generated through collective relationships.159

Mana is both inherent to our being as Māori and can be enhanced or diminished through the ways in which we enact ourselves within the collectives that we affiliate to and with. Mana is therefore connected to both spiritual and earthly sources.160

Mana as a concept is beyond translation from the Māori language. Its meaning is multi-form and includes psychic influence, control, prestige, power, vested and acquired authority and influence, being influential or binding over others, and that quality of the person that others know she or he has! The most important mana however is mana atua — divine right from Io Matua. Every person has mana atua — no more, no less. This form of mana recognises the absolute uniqueness of the individual. Everything across the universe has mana atua, in that everything was created by Io Matua within the ancient teachings of Hawaiki, a leaf, a blade of grass, a spider, a bird, a fish, a crustacean, all have the same divine right as a person. The challenge is to feel for what this really means.161

[Mana] ... is about speaking and behaving with integrity or looking after people and taonga with integrity. Mana is also something you earn and not something you demand.162

... to Māori, mana is the most valued quality. Mana is the basis of personal and collective authority and is central to hapū and iwi identity and relationships to their rohe and each other.163

In my opinion you cannot divorce responsibility from mana. When I go and reach for my trusty Williams Dictionary mana is straight away translated as power, authority and influence, which is true, but rather those things are the outcome of fulfilling your responsibilities. So I think they’ve gone straight to the end result of mana.164

159. Leonie Pihama Statement of evidence, #A19 referring to Marsden at [13]–[14], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.156].
160. Leonie Pihama Statement of evidence, #A19 at [13]–[14], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.156].
161. Leonie Pihama quoting Rangimarie Rose Pere Statement of evidence, #A19 at [13]–[14], in Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Mana Wāhine Kaupapa Inquiry (Wai 2700), as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.156].
162. See David Wilson Brief of evidence, 13 October 2020 at [56], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.157].
163. Tamati Waaka Statement of evidence, 4 January 2017 at [32], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.157].
164. Tāmati Kruger Notes of evidence, undated at 1901, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.160].

Some people and some things have more mana than other people and other things depending on context and depending on the deeds ... of that particular person.165

Mana wāhine in its simplest definition, refers to the inherent uniqueness, strength, power, influence and authority that is derived not only through whakapapa but to our potentiality.166

It should be noted that the very term “mana wahine” is a product of the “patrifying” of Māori thought and practice. Our tūpuna are most unlikely to have felt the need to refer to “mana wahine” because it was simply the case that all people, female and male, had mana. It is only because the colonists regarded “mana” as an exclusively male characteristic — and because of the enthusiasm with which some Māori men embraced that belief — that it has become necessary to identify “mana wahine” as a phenomenon.167

Seas do not belong to a people, they are entirely their own entity. People cannot claim an oceans mana, it is the oceans in its entirety. Who am I to make myself godlike and to cause the flow and ebb of the oceans? Who am I, a mere mortal, to espouse that my mana is greater than the mana of the guardian of the oceans?168

Mana: a jural perspective

• 3.77 Some consider that the primary or basic meaning of mana is “spiritual authority and power”.169 Mana is commonly referred to in jural terms as authority,170 power,171

165. Peter Adds and Paul Meredith Notes of evidence, undated at [25], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.161].
166. Paula Ormsby Brief of evidence, #A55 at [12], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.178].
167. Ani Mikaere Statement of evidence, #A17 at [56], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.178].
168. Tama Te Waiwhakaruku Hata Affidavit, 14 February 2020 at [44], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.196].
169. Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 4; see also Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 63.
170. Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 154, 155, 161, 162 and 166.
171. Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 154, 156 and 158; Annette Sykes “The myth of tikanga in the Pākehā law” (2021) 8 Te Tai Haruru Journal of Māori and Indigenous Issues 7 at 8–9.

jurisdiction,172 and right,173 but these descriptions of mana reflect only one aspect of the concept. As Kruger explains, the power, authority and influence often given as meanings of mana are the end result of fulfilling responsibilities:174

The concept of mana is often interpreted as involving ‘authority’, ‘influence’ and/or ‘power’. As a general proposition, I agree that is the case. However it is important to stress that mana must always have a source (whether in gods, ancestors, people or land), and that source must be established and maintained by discharging certain responsibilities to the source of that mana. In that way, mana is not something held or possessed by someone over their gods, ancestors or their land, rather that mana comes from the source and is preserved and fulfilled by living and practicing tikanga Māori.

• 3.78 Mana will rise or diminish depending on the extent to which the associated responsibilities are assumed and discharged. It may also be affected by external factors diminishing mana. Metge, drawing on the advice of numerous tikanga experts, describes the dynamic quality of mana in this way:175

The individual store of mana is never fixed but as with water in a lake its level continually rises and falls. It rises as a result of the acquisition of new forms of mana, conscientious observance of the rules governing its use, successful completion of tasks attempted, and the recognition and respect given by others. It falls as a result of misuse of the delegated power, failure to complete the tasks successfully, and insults and injuries inflicted by others.

• 3.79 It is beyond this Study Paper’s scope to address each of the types of mana in depth. However, the following observations have general application. While precise categorisation of the sources of mana varies among tikanga jurists,176 the four types named by Barlow (mana atua, mana tupuna, mana whenua and mana tangata) appear to be widely supported and to capture the primary sources and forms. Metge notes that:177

These various forms of mana are not clearly distinguishable from one another. To a large extent they are all forms of mana tupuna, since rights to land, leadership capacity, artistic gifts and even direct access to the spiritual dimension are regarded as handed down ancestral lines. Nor are they mutually exclusive. Groups and most individuals typically hold several at once.

• 3.80 The common denominator among these categories is whakapapa and whanaungatanga: to atua, to tūpuna, to whenua and to people. As Jackson explained the connection of mana with whakapapa:178

172. Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 159 and 162.
173. Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 164.
174. Vivian Tāmati Kruger Statement of evidence, 2 June 2020 at [42]–[43], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.158] and see further at [4.160].
175. See also Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 68–69.

¹⁷⁶ For example, see discussion in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.157]–[4.161].

177. Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 68.
178. Moana Jackson Affidavit, 24 April 2012 at [29], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.168].

The whakapapa which ultimately links all Iwi and Hapū together provides the papa upon which mana is based because any mana which humans might exercise as a political power could only be legitimised in concert with mana whenua, mana moana, and mana atua.

• 3.81 Illustrating how responsibilities are as important as “genealogical seniority” in determining mana, Mutu explains the role of rangatira (Māori leaders) as follows:179

The role of tribal leaders was, very basically, to ensure the well-being of the tribe. Leadership was passed from one generation to the next with the extent of a chief’s mana determined not only by genealogical seniority but also by his or her own personal qualities and abilities to maintain the support and confidence of his/her people.

• 3.82 Ngahihi o Te Ra Bidois puts it this way: mana lies “not so much in the deeds of the hero” but in collective community wellbeing.180 Responsibilities tied to mana include “mauri ora (survival)”.181 Mana is said to be “as much about responsibility, the responsibility to maintain mauri ora or the healthy state of natural resources, as ... about rights of use”.182
• 3.83 Kruger, too, expresses what is now often called “mana whenua” in the terms of different responsibilities that arise:183

While the connection between Māori and the land at a spiritual level is enduring, the reality is there are different ways in which the relationship with particular areas come about. These are referred to as take, which means ‘the basis of’. There are five different take which allow for a closer analysis of the justification of a particular group’s responsibilities vis-à-vis the land: ...

Take kitea: responsibilities on the basis of discovering of the land; Take tupuna: responsibilities on the basis of heritage or whakapapa; Take raupatu: responsibilities on the basis of conquest or war;

Take tuku iho: responsibilities on the basis of gift, including through marriage; and

Take hoko: responsibilities arising from an exchange, though not a purchase in a Pākehā sense.

• 3.84 The maintenance of mana is a matter of great importance in te ao Māori. Showing manaakitanga to visitors and exercising kaitiakitanga in relation to natural resources are common examples of mana-associated responsibilities.
• 3.85 A person’s failure to discharge their responsibilities could significantly diminish mana and lead to whakamā. While this is often translated as shame, this is only partly accurate. Marsden described whakamā as “the outward expression of inward disintegration”.184 This

179. Margaret Mutu, Joan Metge and Maurice Alemann Brief of evidence, #F12 at [8], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.172].
180. Ngahihi o Te Ra Bidois Statement of evidence, 19 November 2007 at [5.2], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.173].
181. Mita Michael Ririnui Evidence, 6 July 2020 at [20], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.175].
182. Awhina Evelyn Waaka Affidavit, 21 November 2013 at [5], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.188].
183. Vivian Tāmati Kruger Statement of evidence, 2 June 2020 at [97]–[98], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.200]. Compare the way in which Mead approaches issues of mana whenua and operative facts that must be shown to establish a claim to mana whenua: Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 305–308.
184. Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 77.

is not simply a matter of emotional harm. As Metge explains, loss of mana and consequent whakamā has multiple dimensions:185

(a) As mana is a spiritual force or has spiritual implications, whakamā cannot be viewed as simply a psychological problem. It is an illness with a spiritual dimension, affecting the whole person.

(b) Because individuals derive so much of their mana from shared ancestors and from membership in descent groups and because mana empowers people for social action, whakamā cannot be seen as an individual matter.

(c) Consequently, the effective treatment of whakamā must deal with the spiritual as well as the psychological aspect of a person and with the person in the context of social relations, not in isolation.

(d) Even people whose mana is high will feel whakamā deeply when they suffer loss of mana. Others have a responsibility to bring a person out of whakamā.

(e) Care must be taken not to unwittingly diminish mana, although there are times when that will be necessary to protect others’ wellbeing.

• 3.86 In summary, while mana is often assumed to refer in broad terms to power and authority in respect of a place or people, it can be expressed in many forms. At its core, the power or authority to which mana may refer are conditional upon the discharge of accompanying responsibilities associated with the source of that power and the specific take or reason for it. For example, to the extent that mana may refer to chiefly mana in respect of the whenua or of people, it reflects both responsibilities and abilities to sustain the mauri or wellbeing of the whenua and of the people. Mana may increase or diminish depending on the success or failure to discharge associated responsibilities. Any impact on mana, either positive or negative, will impact not only the individual but also the collective to which the individual belongs. Loss of mana can cause great whakamā. Violation of mana without proper reason, including failure to respect it, must be remedied in order to restore that mana and therefore achieve ea.

Tapu

• 3.87 Tapu is closely allied with concepts of mana and mauri. It works to regulate, protect and preserve mana and mauri by imposing behavioural restrictions or requiring that certain actions or processes be followed.186 Mikaere identifies tapu as having two major aspects: first, recognition of the inherent value of each individual and the sacredness of each life (sometimes called intrinsic tapu), and second, spiritual prohibition or protection to safeguard people, property and sacred sites and maintain social discipline.187

185. Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 78–79.
186. Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [37], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.72].
187. Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134 at 137–138.

• 3.88 All things in te ao Māori have tapu,188 termed by Jackson “the major cohesive force in Maori life”.189 As Mead says:190

Tapu is pervasive and touches all attributes. It is like a personal force field that can be felt and sensed by others. It is the sacred life force which supports the mauri (spark of life), another important attribute of a person. It reflects the state of the whole person. In fact, life can be viewed as protecting one’s personal tapu and in so doing one is looking after one’s physical, social, psychological and spiritual wellbeing.

• 3.89 While, in its second sense, tapu represents sacrosanct or untouchable matters, there are processes that enable engagement with things or people that are tapu and that remove tapu safely or suspend it for a particular purpose.191

Though ‘tapu’ is commonly translated as sacred, it is more accurate to think of tapu as being a restriction for spiritual purposes. ‘Tapu’ must be understood alongside the concept of ‘noa’. Noa is when tapu is removed or cleared through the proper karakia ritual, removing the spiritual restriction.192

The purpose of tapu [is]:

to caution and warn of danger (kia wehi, kia tūpato i te tangata); to instil faith, values and belief of traditions (kia ū te whakapono); to guide, nurture and protect people (hei araki i te tangata);

to honour the relationship between humankind, the physical realm and Atua (whakahōnore whakapapa);

to instil mana (whakaū mana);

to protect the mauri (whakaū mauri); and

to restrict, impose a ban on an area for a short period of time (rāhui).193

EXPRESSIONS OF TAPU

188. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.48].
189. Moana Jackson The Maori and the Criminal Justice System: A New Perspective | He Whaipaanga Hou (Department of Justice, Study Series 18, 1987–1988, part 2) at 41; see too Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134 at 138.

¹⁹⁰ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 51.

191. Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 128–129; Makereti Papakura The Old-Time Maori (Victor Gollancz, London, 1938) at 219–220 and 226.
192. Te Riaki Amoamo Affidavit, 25 January 2022 at [14], as cited in Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772.
193. Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [37], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.73].

... the Māori world was a world of wairua, and Māori life was spiritually driven. Everything that was done was accompanied by karakia and rules of tapu.194

When you enter the realm of Tapu the atua are always at the forefront of your mind ... When we enter the realm of Tapu, we enter where the atua reside, their rivers, their mountains, their waters, their forests, their domains, their territories, all of which fall under the spiritual protection of Tapu. ... Tapu comes directly from the atua.195

... everything is intrinsically tapu because everything in the Māori world has whakapapa that goes back to ancestors and then eventually back to the Atua.196

There are degrees of tapu. Some things are intrinsically more tapu than others because of their association with the hierarchy of gods.197

... everyone also falls under the spiritual protection of tapu. Rangi is tapu and Papa is tapu. All their children and descendants are tapu, the mountains, the waters, the forests, they are all supreme beings superior to humankind. People are tapu as well from their head to their toes, the most tapu person all during a tangihanga [sic], are women. That is why only women can sit beside the tūpāpaku the entire duration of a tangi to mourn and lament, whilst men sit opposite or separate to the tūpāpaku.198

The residual impact of mana is tapu. Where there is mana, which is god power, the influence creates an effect that is holy or tapu — the residue of gods. Important ancestors were not only tapu as a result of their descent but also their other works that required them to be a vessel or channel for godly activities such as controlling weather, volcanic activity and the seas. Where they ventured, places they named or built would become tapu thanks to the power of their mana.199

I understand wāhi tapu to be a sacred or tapu place, a place where tapu exists whether it is in a traditional or spiritual sense. To Māori, the physical, spiritual and natural world are all linked and wāhi tapu are often sacred because they are sites which keep open our connection to our tīpuna, our atua Māori and our histories.200

Wāhi tapu areas were traditionally kept very separate from areas where fishing, kaimoana collection and other daily activities were performed because such activities are noa (common or ordinary), and never exercised in the same area as a wāhi tapu (sacred place). This is why you will rarely find wāhi

194. Rima Eruera Statement of evidence, #F23 at [8], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.70].
195. Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [37], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.72].
196. Peter Adds Brief of evidence, #4.11 at 36, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.76].
197. Peter Adds Brief of evidence, #4.11 at 36, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.76].
198. Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [39], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.79].
199. Tahu Potiki Cultural values assessment and analysis, August 2016 at [7.3], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.83].
200. Hetaraka Biddle Affidavit, undated at [6], [7] and [10]–[12], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.87].

tapu in coastal areas where there is lots of movement of people for fishing or transport, such as

river mouths. If there are wāhi tapu present in such areas, they will have clearly defined boundaries so that people can avoid them and continue to use the kai gathering or travel routes that were essential to the everyday functioning of traditional Māori life.201

... [the] consequence of breaking tapu results in misfortune, sickness or death. Therefore tapu was taken very seriously and even today, if there is sickness or death in a whanau or hapū we generally reflect on whether any tapu has been broken so we understand how to deal with it and remedy the situation.202

Tapu: a jural perspective

• 3.90 The meaning of tapu is complex. According to Tomas:

... tapu can best be described as a quality that emanates from the wairua source, investing objects with value. In its practical application, tapu was the principal means by which the mauri of an object could be protected from harmful interference by overlaying the object with tapu. The concept of “tapu” is closely related to that of “mana” in that the authority attributed to wairua and atua provided the impetus for investing objects with tapu. Additionally, mana tangata enabled those rangatira and tohunga with the requisite mana, to impose a state or condition of tapu over a person or object.

• 3.91 Marsden considered that tapu:203

... has both religious and legal connotations ... The person or object is ... removed from the sphere of the profane and put into the sphere of the sacred. It is untouchable, no longer to be put to common use. It is this untouchable quality that is the main element in the concept of tapu. In other words, the object is sacred and any profane use is sacrilege, breaking the law of tapu.

• 3.92 The authors of He Hīnātore ki te ao Māori observe that tapu acted as a protective mechanism,204 and as a corrective power within Māori society.205 They consider that tapu “acted in the same way as a legal system operated with prohibitory controls”.206 Making something or someone tapu could “either protect the environment against interference from people or protect people from possible dangers they may encounter”.207
• 3.93 As these authorities illustrate, tapu is often described as a form of restriction. As such, tapu is said to regulate. According to Matiu and Mutu: “[i]t is the laws of tapu which play

201. Louis Agassiz Schenker Rapihana Affidavit, 31 March 2022 at [4.3], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.91].

²⁰² Te Riaki Amoamo Affidavit, 25 January 2022 at [13], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.137].

²⁰³ Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 174. Adopting Marsden see too McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 158.

²⁰⁴ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 65.

²⁰⁵ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 1.

²⁰⁶ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 1.

²⁰⁷ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 65.

the most influential role in regulating Māori society”.208 According to the Awanuiārangi pūkenga: “tapu is the regulator of the actions in maintaining the connections”.209 However, perceiving tapu as merely a “restriction” is insufficiently nuanced. It is more accurate to see tapu as involving varying degrees of restriction. As the Commission observed in its 2001 Study Paper: “[t]here was ... a dynamic flow associated with tapu, so that its influence could spread by contact, or decline when needs changed”.210

• 3.94 The tapu of a person, object or place can denote either their special significance that is worth protecting or a condition from which people must be protected, arising from the potential of the person, object or place to cause harm. One way in which tapu has jural significance is that it points to the corresponding signficance of any violation. Improper interference with tapu demands utu.211 An intentional violation of tapu is a hara or wrongdoing for which there must be consequences.
• 3.95 In jural terms, therefore, tapu denotes a complex combination of immunity for tapu entities from interference, duties to maintain that which is tapu and liability proscribing engagement with tapu entities. For example, urupā (burial grounds) are considered particularly tapu. They are a place connected to the spiritual realm and therefore both sacred and a place where visitors may be at risk of potential harm. The tapu proscribes people from undertaking certain activities within urupā, recognising the need to respect them and maintain their sacredness.
• 3.96 Examples of kawa or protocols enforced to maintain tapu or to properly manage engagement with that which is tapu include for instance cleansing with water when leaving an urupā to return to a state of noa or ordinary life. Rāhui are another example. These restricted areas are often associated with the tapu of a place, for example, where a death has occurred, acknowledging both the sacrality of that place and the potential for harm. They are also associated with more mundane or practical objectives, for example, to avoid spread of disease or for sustainable management purposes. In this way, tapu can assist with the protection of mauri. Emphasising how tapu serves such practical purposes, Durie explains:212

... a more utilitarian view of the purpose of tapu was discussed by Te Rangi Hiroa. He drew a connection between the use of tapu and the prevention of accidents or calamities, implying that a dangerous activity or location would be declared tapu in order to prevent misfortune. More than a divine message from the gods, or the recognition of status, the conferment of tapu was linked to healthy practices.

• 3.97 Durie describes tapu as a type of public health regulation basically concerned with avoiding risk and promoting good health. In contrast, noa (discussed in the next section)

208. McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 159.
209. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.48].

²¹⁰ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 37.

²¹¹ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 61.

212. Mason Durie “The application of tapu and noa to risk, safety, and health” (presentation to Challenges, Choices and Strategies, Mental Health Conference 2000, Wellington, 16 November 2000) at 3–4, as cited in Te Aka Matua o te Ture

| Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 37–38.

was a term used to denote safety. Harm was less likely to come to those entering a noa location, eating food rendered noa by cooking or touching a noa object.213

• 3.98 As we explained above, mana and tapu are closely related. Mana is associated with tapu

— the higher the mana of a person, the greater the tapu. A tohunga (Māori knowledge expert), for instance, is likely to be considered particularly tapu and to have significant mana.214 Accordingly, a violation of their mana is likely to transgress tapu and vice versa, with potentially significant consequences for the transgressor.215

• 3.99 The tapu of a person, object or place can be reduced or removed if certain processes called whakanoa (meaning to remove tapu) are followed. As Mikaere says:216

Just as vital as the ability to impose restrictions through the use of tapu was the ability to remove such restrictions. For the majority of people, the roles and tasks of daily life led them backwards and forwards across the boundaries of tapu and noa. ... The whare mate [a whare where a body lies during mourning] could not remain so indefinitely: they had to be repatriated back into the fold of the living. A new whare tupuna [marae meeting house] could not stand completed and empty: the tapu had to be lifted so that it could be used. This was the power of noa: the undoing of the restrictions imposed by tapu.

• 3.100 Mikaere thus rightly emphasises the fluidity of tapu. However, to make something noa without performing the appropriate process is a wrongdoing for which tikanga requires a consequence. We discuss noa next.

Noa

• 3.101 Noa refers to a state where strict processes are not required. Noa, which indicates some degree of freedom, is important because it is too difficult to always live in a tapu state. 217 However, the relationship between tapu and noa is complex, and the concepts are not opposites. Rather, tapu and noa work in tandem, each needing to be maintained at appropriate levels for Māori society to function in different situations.
• 3.102 Within hapū and iwi, certain actions can only be undertaken if there is a state of noa. Pōwhiri processes show the significance of noa. When visiting marae, manuhiri are only free to engage with their hosts after having achieved noa, which is facilitated by the pōwhiri.218 At the beginning of the pōwhiri process, its participants are tapu.219 Subsequently, visitors are allowed to consume food, enter the wharenui and freely

213. Mason Durie The Application of Tapu and Noa to Risk, Safety, and Health (presentation to Challenges, Choices and Strategies, Mental Health Conference 2000, Wellington, 16 November 2000) at 3–4, cited in Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 37–38.

²¹⁴ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 1 and

53. Metge describes tapu as a state of being that results from mana: Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 66.

²¹⁵ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 54.

216. Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134 at 138.
217. Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 217; Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 266.

²¹⁸ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 127.

219. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.59].

interact with the host group. As visitors transition from the ātea (the domain of Tūmatauenga, the atua known for his unpredictability) to the whare (the domain of Rongomatāne, the atua responsible for peace), they must first be in a state of noa.

EXPRESSIONS OF NOA

While noa and peace are not the same, they go hand in hand. There are also processes for returning the collective to a state of noa after a transgression has occurred. In this context, noa is linked to the concept of ea or balance.

[Noa is] the spiritual state and physical ability to allow a person to be free from the restrictions of tapu. The people or place is no longer tapu for a permanent or short period of time so that people can access it without fear of spiritual harm to them or their whānau. Noa allows people to survive and live.220

... noa is not the opposite to tapu. The opposite to tapu are other forms of tapu.221

Women are especially powerful in making things and activities noa. Women have a particularly important task in ensuring that the extension of tapu on buildings does not apply to the users. They therefore make buildings safe for use or habitation. This is the mana and tapu of women, in that they have the ability to free areas, things and people from restrictions imposed by tapu. Women are not noa, as is often thought, but they are agents to whakanoa — to make noa.222

Noa: a jural perspective

• 3.104 Noa is a relatively undernourished concept in tikanga discussions and academic writing. However, the freedoms that it connotes play a vital role in Māori social order. As Pihama explains:223

The influence and power of noa is very significant to the physical well-being of people by freeing them from any quality or condition that make them subject to spiritual and/or ceremonial restriction and influences. The concept of noa is usually associated with warm, benevolent, life-giving, constructive influences including ceremonial purification.

220. Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [57], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.143].
221. Peter Adds Brief of evidence, #4.11 at 39, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.145].
222. Leonie Pihama Statement of evidence, #A19 at [79], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.147].
223. Leonie Pihama quoting Rangimarie Rose Pere Statement of evidence, #A19 at [80], as cited in Coates and Irwin- Easthope “Beneath the herbs and plants”, Appendix 2 at [4.144].

• 3.105 Jurally, noa can be associated with freedom and powers, including the power to affect tapu through the process of whakanoa. An example of how noa provides comparative freedom is that karakia may be used to make a person’s body (or a part of their body) noa for the purpose of a medical procedure. By doing so, their body or body part is rendered immune from their tapu being interfered with. Correspondingly, the person conducting the procedure is freed from liability from interfering with the tapu of the person. There are nuances, as Mikaere shows, discussing removal of tapu from wharenui:224

For example, the lifting of the particular tapu imposed on a whare whilst it was being built did not then make the whare completely unrestricted. It simply meant that the particular restriction against anyone but those who were working on it entering the building was lifted. The iwi were now free to enter and to use the whare. However, the whare itself remained a tapu place in the sense that it represented a revered tupuna, and there remained many restrictions on conduct within it.

• 3.106 By analogy, this example might be extended to bodily integrity in the context of a medical procedure.
• 3.107 Because a perpetrator would be liable for improperly making something noa or reducing levels of tapu too much, the power to whakanoa must be carefully managed through appropriate processes, or kawa.225

Mana, tapu and noa in action

• 3.108 The overland journey of Kohinemataroa, as told by Tomas, provides an historical illustration of establishing mana and whakapapa:226

The first person to set foot on the land around the mid northern side of the Hokianga was Kohinemataroa. She was the daughter of Punateariari, who was a sister of Rahiri. As she journeyed across the land she named various places, including Waireia, Waihou, Oruaanui and Patiki (later renamed Whakarapa). The mana rangatira on the land was hers because she was the first person who travelled across the land, establishing her links to it through naming. Her son Rongomai accompanied her on her second visit, during which she named various other places. After she died her authority on the land passed to her son, Rongomai, and then down to her uri or descendants. Waihou, Whakarapa, Motuti and Whangapatiki all belonged to her, according to Re Te Tai. She consolidated her claim by working on the land and establishing kumara plantations. While she was working there she lived at Waihou and Whakarapa.

• 3.109 As Tomas also wrote, subsequent lack of contest for the lands claimed by Kohinemataroa was due to two factors. The mana of her senior lineage was respected by local

²²⁴ Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134 at 138–139.

²²⁵ For discussion particularly of the role of wāhine Māori in whakanoa, and correspondingly whakatapu (that is, the transitions from tapu to noa and vice versa) see Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134 at 139–141.

²²⁶ Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 127–128.

communities. Pragmatically, she also had mana in action, in the form of the power to exercise her authority through the backing of a powerful military force.227

• 3.110 This narrative further shows how whakapapa or connection to whenua, exemplified through place naming, may substantiate a tikanga based claim to a place. As the Awanuiārangi pūkenga explain, the connection the collective has to the land is reinforced by naming sites, rivers, ridgelines, hills and mountains. The names will narrate who was involved, what occurred and why.228
• 3.111 The rāhui placed in response to the eruption of Whakaari | White Island on 9 December 2019 is an example of a contemporary exercise of mana and the operation of tapu. Following the eruption, which caused 21 deaths, a number of iwi initially placed a total ban on all maritime activities in the ocean, including swimming. This was later changed to a ban only on fishing and gathering of seafood. The rāhui was widely respected despite the negative commercial and fiscal impact that the rāhui had on businesses in a beach and ocean-based community and the effect of it on Christmas and holiday ocean activities.229
• 3.112 The Awanuiārangi pūkenga provide a further historical example of tapu and mana in action, in the rāhui of Mihi-ki-te-kapua. In the early 1800s, a Tūhoe rangatira named Mihi- ki-te-kapua placed a rāhui over a coastline where her son had passed away. In response to the rāhui, people moved away from the area. As time passed, some longed to return and did so. However, for Mihi-ki-te-kapua, who was still grieving for her son, the site remained tapu. She said — do not return yet, you may unwittingly eat the remains of my son: “Taihoa e hoki koi kai koutou i ngā para o taku tamaiti”. Because of her mana and the hara consequent on the breach of tapu, she was able to assemble a taua or war party to enforce the rāhui at the cost of the lives of many of the returning hapū. The famous Tūhoe waiata Taku Rākau E records this event.230
• 3.113 To offer a final simple illustration of how tapu and noa interact:231

... the whenua (placenta) of a newborn baby is returned to be buried in the tribal lands as a way of physically connecting them to their significant space and place. Where the whenua is buried, a hāngī stone [used for cooking food, and therefore noa] is placed directly on top of it and is also buried. As the whenua is part of the human body, it is considered tapu, and therefore where it is buried becomes tapu. The hāngī stone is placed on top of the whenua to nullify the tapu, thereby making the place noa.

Summary: mana, tapu and noa

• 3.114 In summary, mana, tapu and noa are significant in establishing correct relationships and regulating relationships. By establishing the standing of a person or entity, they clarify

²²⁷ Nin Tomas “Key concepts of tikanga Māori (Māori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 114–115.

²²⁸ Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.35]; and see Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 309–311.

²²⁹ Hirini Moko Mead and Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [46]–[47], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.109].

²³⁰ Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [2.57].

231. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.60].

how others should relate to that person or entity and thereby regulate behaviour. Relational norms established by mana, tapu and noa are among the most fundamental norms governing Māori society. They stand alongside the structural norms of whakapapa and whanaungatanga and prescriptive norms of mauri, utu and ea. In a sense mana, tapu and noa might be termed the tikanga “engine room” because of the essential regulative role that they play. Below, the significance of kawa is noted in administering these concepts.

CONCEPTS OF RESPONSIBILITY

• 3.115 We have already explained that tikanga concepts of whanaungatanga and mana are closely associated with norms of responsibility. To illustrate this further, we next discuss four key responsibilities — kaitiakitanga, manaakitanga, aroha and atawhai. Each of these are inherent in mana and linked with whanaungatanga. Given these concepts’ jural similarities, we introduce each concept first and then discuss their jural aspects together. This differs slightly from the sequence followed in the chapter up to this point. These four responsibilities are only examples. In different factual situations further responsibilities such as kotahitanga (unity) may arise, as seen in Chapter 4 which follows.

Kaitiaki and kaitiakitanga

• 3.116 The word kaitiaki is sometimes defined as a guardian. A kaitiaki can be a person, creature, object or metaphysical being (such as taniwha), whose role involves protective duties towards place, people and, broadly, the kinship group.232 Many duties of a kaitiaki concern whenua and the management of other natural resources. In modern times, kaitiakitanga is most often applied to the obligation of whānau, hapū and iwi to protect the spiritual and physical wellbeing of environmental resources in their care.233 However, kaitiakitanga also involves social responsibilities. In the Report on the Crown’s Foreshore and Seabed Policy, the Waitangi Tribunal identified that kaitiakitanga is different to a notion of environmental conservation.234 The Tribunal said that kaitiakitanga “best explains the mutual nurturing and protection of people and their natural world”.235

232. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.96]. See also Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuarua (Wai 262, 2011, vol 1) at 17; Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 105.
233. Te Aka Matua o te Ture | Law Commission Maori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 40, citing Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Whanganui River Report (Wai 167, 1999) at 265–283.

²³⁴ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at 8.

²³⁵ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at 8; and see generally Merata Kawharu “Kaitiakitanga: a Maori anthropological perspective of the Maori socio-environmental ethic of resource management” (2000) 109 The Journal of the Polynesian Society 349.

• 3.117 Others emphasise that, in an older understanding, creatures were the kaitiaki and the role of humankind was to observe them.236 As Marsden pointed out, the atua Māori were kaitiaki of their domains.237 Matiu and Mutu explain that:238

Traditionally, kaitiaki are the many spiritual assistants of the gods, including the spirits of deceased ancestors, who were the spiritual minders of the elements of the natural world ... These spiritual assistants often manifest themselves in physical forms such as fish, animals, trees or reptiles ... Each kaitiaki is imbued with mana. ... There are many forms and aspects of mana, of which one is the power to sustain life.

• 3.118 As they continue:239

Māoridom is very careful to preserve the many forms of mana it holds, and in particular is very careful to ensure that the mana of kaitiaki is preserved. In this respect Māori become one and the same as kaitiaki (who are, after all, their relations).

• 3.119 Professor Merata Kawharu identifies that, for the kinship group, rangatira serve as kaitiaki. In this way, like Matiu and Mutu, Kawharu implicitly associates this function with mana.240

[Kaitiakitanga incorporates] one universe, where all living things are connected. This includes animals, fish, plants, forests, sea and humans. Kaitiaki are manifested in tangible and intangible forms and are not always human.241

EXPRESSIONS OF KAITIAKI AND KAITIAKITANGA

²³⁶ Mere Roberts and others “Kaitiakitanga: Maori perspectives on conservation” (1995) 2 Pacific Conservation Biology 7 at 14; Edward Taihakurei Durie and others “Ngā wai o te Māori: ngā tikanga me ngā ture roia | The waters of the Māori: Māori law and State law” (paper prepared for the New Zealand Māori Council, 2017) at 30.

²³⁷ Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 67; see also Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 105.

²³⁸ McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 167.

²³⁹ McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 167.

²⁴⁰ Merata Kawharu “Kaitiakitanga: a Maori anthropological perspective of the Maori socio-environmental ethic of resource management” (2000) 109 The Journal of the Polynesian Society 349 at 359.

241. Kura Paul-Burke Statement of evidence, 22 December 2016 at [3.3], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.329].

Our hapū are obliged to actively protect our area for future generations through the practice of kaitiakitanga no matter what the cost. It is our responsibility to keep and guard hapū interests and taonga. It is us (Tainui o Tainui ki Whaingaroa) who are responsible for the preservation and guardianship of Whaingaroa Harbour. It is we who are obligated to nourish and control the relationship between our peoples and our natural world.242

Kaitiaki “have an intrinsic duty to safeguard the mauri of the environment, including to ensure the physical and spiritual health of the environment is maintained, protected and enhanced”.243

The fundamental component of kaitiakitanga is whakapapa. It is whakapapa that links individual kin to each other, to a specific location, resources, ngā Atua, as well as the dearly departed.244

[Kaitiakitanga is] essentially the responsibility aspect of mana. It recognises the responsibility of iwi and hapū to protect and look after the whenua, moana and taonga within their rohe. It also reflects the fact that iwi and hapū do not see themselves as owning the whenua, or moana, in the sense that we understand ownership today.245

When you are a kaitiaki you are the guardian of the resource for everybody. That doesn’t necessary [sic] mean you have the sole mana over the resource; kaitiaki need to exercise their guardianship for the benefit of the eco-system as a whole. The guardianship is over all living things and is not just restricted to human sustenance. If all living things are sustained then the people are sustained.246

Most importantly I have visited most of the sites I talk about in this evidence, and continue to visit them on a regular basis. I frequently wānanga (meet and discuss) at these sites with whānau, iwi members, students as part of a walking lecture and for anyone who is interested in learning more about these sites. I consider this as an active expression of my obligations as a kaitiaki for these kōrero and these sites our tūpuna lived and loved.247

... [a] person or iwi may be kaitiaki over land or water, but that is not ownership as once we leave this world someone else will take over as kaitiaki or guardian.248

242. Angeline Greensill Statement of evidence, undated at [24], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.331].
243. David Topia Rameka Statement of evidence, 4 June 2017 at [21], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.331].
244. Gregory Lloyd White Statement of evidence (cultural), 14 June 2019 at [69]–[77], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.332].
245. Tamati Waaka Statement of evidence, 4 January 2017 at [55], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.338].
246. Hohepa Joseph Mason and Te Kei (O Te Waka) Wirihana Merito Brief of evidence, 29 April 2019 at [56], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.340].
247. Ngarimu Alan Huiroa Blair Statement of evidence, 2 June 2020 at [11], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.344].
248. Hemana Eruera Manuera Statement of evidence, 29 March 2019 at [54], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.347].

Tangitū manifested herself as a whale and is an important kaitiaki for the Hapū. According to tradition, if tikanga or kawa were not properly observed when gathering kaimoana or other resources, Tangitū the kaitiaki would appear. The Hapū believe that, as a kaitiaki, Tangitū has the power to protect her people, particularly in the event of natural disasters. She has been known to use her tail to unblock the mouth of Te Ngarue and Pākuratahi Streams, or lie across the mouth as protection in the event of high seas. There are other kaitiaki who live in Tangitū, including Uwha, at Arapawanui, who takes the form of an eel or octopus, and Moremore, the son of Pania (of the reef), who swims the coastline in the form of a mako.249

The seer or tohunga had a kaitiaki role. His role was to interpret any unnatural phenomena or occurrence like an unusual sighting, such as a log floating upstream against the current. That sighting would be deemed a taniwha. In summary a taniwha was regarded as the manifestation of an unnatural occurrence. Taniwha were used to support the decision making of a tohunga.250

Manaakitanga

• 3.120 Manaakitanga speaks to the duty of care people have to each other, the environment, mātauranga Māori, the past, the atua and to all things.251 Manaakitanga, literally translated, means to care for mana.252 As Coates and Irwin-Easthope find: “[a] number of people refer to the importance of manaakitanga to uphold both the mana of others and one’s own mana”.253 Durie describes manaakitanga as “an aspect of mana on which Māori placed special store. It amounted to generosity, caring for others and compassion.”254 According to the authors of He Hīnātore ki te ao Māori:255

Manaakitanga means to care for a person’s well being in a holistic sense — that is physically, mentally and psychologically. It is a concept that extends beyond the bounds of the family and involves all people. It is one of the main factors in judging a person’s status as a leader or one possessing mana, and that is by their generosity in taking care of others.

249. Tania Marama Petrus Hopmans Affidavit, 3 April 2017 at [84], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.368].
250. Waiohau (Ben) Te Haara Evidence in reply, undated at [15]–[16], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.366].
251. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.87].

²⁵² Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 166.

²⁵³ Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.256].

²⁵⁴ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 6.

²⁵⁵ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 166.

EXPRESSIONS OF MANAAKITANGA

... manaakitanga is the process of giving to others, but it is about “te mana āki” or enhancing the mana of others, and in doing so upholding your own mana.256

... [manaakitanga] can be described as generosity, care-giving, or compassion and is an expression of one’s mana, one’s status and authority, through acts of kindness and caring. To manaaki or give generously and provide hospitality is a mana-enhancing activity. It also creates an obligation on the visitor to reciprocate in the future. Thus mana, manaaki and tuku are closely related concepts in Te Ao Māori.257

There might be someone at a tangi (funeral) that wants to mihi (greet) the whānau on the paepae (orator’s bench) but they can’t kōrero Māori. Even though it is not tika (right) it might be decided to allow them to kōrero. This is consistent with the idea of manaakitanga and allowing for the exercise of whanaungatanga and connections to be made between people.258

There are different levels of manaakitanga accorded a person. It depends on the level of whanaungatanga, whether a close blood whānau member or a whanaunga. Sometimes the whanaunga relationship is stronger than the whanaungatanga to a blood relative this may be due to close association through work, sports and friendship. These types of relationships and as well as their strengths will determine what level of manaakitanga is given.259

Our customary areas are not as rigid as Western boundaries ... Other Whakatōhea hapū can come into our sector, for instance, we wouldn’t stop Ngāti Patu coming to fish in our area. The tikanga is that we share the kai because our hapū of Whakatōhea are related to each other by whakapapa, and it is part of our collective responsibility to care for our whanaunga, as they do for us (this is known as manaakitanga). However, [there is a] distinction between permitting access to our sea territory as a matter of manaakitanga and having the customary authority to act as the kaitiaki.260

256. Moe Milne Statement of evidence, #A62 at [122], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.256].
257. Margaret Anne Kawharu Statement of evidence, 2 June 2020 at [35], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.257].
258. David Wilson Brief of evidence, 13 October 2020 at [52], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [3.4].
259. Te Kahautu Maxwell Affidavit, 7 August 2020 at [99], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.258].
260. Te Riaki Amoamo Affidavit, 3 August 2020 at [6.5] and [6.6], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.259].

Aroha and atawhai

• 3.121 Aroha is often understood as a literal translation of love. However, the meaning is broader, having a “wide range of meaning from compassion and love to concern and sorrow”.261 Barlow observes that “[a] person who has aroha for another expresses genuine concern towards them and acts with their welfare in mind”.262 According to the authors of He Hīnātore ki te ao Māori:263

Aroha is an expression of love, care, respect and affection in its widest sense. It is the essential element in interpersonal relationships. It begins from birth and continues till death. Aroha encompasses respect, friendship, concern, hospitality, and the process of giving. Thus every person is concerned for and respects the rights of others. In short, it is valuing another person.

• 3.122 As we observed in relation to kaitiakitanga and manaakitanga, aroha and its similar concept, atawhai, are linked with mana. Similar to aroha, atawhai relates to nurturing, caring and kindness and “extends to embracing and supporting others in its broadest sense”.264 Tamati Waaka has discussed atawhai in connection with the responsibilities of rangatira. Waaka emphasises the important role that a rangatira has as someone who “possesses the skills necessary to maintain mana and was regarded as the repository for the mana of the collective”. He notes that their responsibilities include knowledge of how to look after people: “He atawhai tangata”.265

In te ao Māori, there are tikanga values that guide our relationship to the takutai moana [coastal area]. They are built on mana motuhake, mana whakahaere, mana taketake and notions of kaitiakitanga, aroha, and manaakitanga.266

The healthy harakeke [flax] is stabilised by a root system representing values and practices of aroha (love/compassion), manaakitanga (care/responsibility for others), wairuatanga (nurture of the spirit) and whanaungatanga (kinship obligations).267

EXPRESSIONS OF AROHA

261. Te Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at 19.

²⁶² Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 8.

²⁶³ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 151.

²⁶⁴ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 152; H W Williams Dictionary of the Māori Language (GP Publications Ltd, Wellington, 1992) at 19.

²⁶⁵ Tamati Waaka Statement of evidence, 4 January 2017 at [38]–[41], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.101].

²⁶⁶ Te Rua Rakuraku and Donald Kurei Joint affidavit, 21 January 2022 at [20], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.336].

²⁶⁷ Khylee Quince s 27 report, 18 September 2018 at [9], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.58], drawing on the metaphor of “te pā harakeke” to explain the relationship between a child and their whānau.

I believe that [aroha] is the pivotal value around which Māori society was organised and it reflects a set of privileges and obligations that each folk has with the rest of his community.268

Aroha was the most important thing. If that aroha was abused, the abuser put the tuku at risk.269

A jural perspective: kaitiakitanga, manaakitanga, aroha and atawhai

• 3.123 Kaitiakitanga, manaakitanga, aroha and atawhai each describe norms of care and responsibility. They are each closely associated with whanaungatanga connections and with maintaining mana. Meeting responsibilities arising from whanaungatanga and consistent with mana will often require the exercise of kaitiakitanga or expressions of manaakitanga or aroha. Te Rua Rakuraku and Donald Kurei, for example, identify practices of kaitiakitanga, aroha and manaakitanga “embedded into the notions of authority”.270
• 3.124 Exercising kaitiakitanga for the kinship group or in relation to natural resources is strongly linked to whanaungatanga. Kaitiakitanga has been described by the Waitangi Tribunal as: “the obligation, arising from the kin relationship to nurture or care for a person or thing”.271 While manaakitanga and aroha express broader responsibilities that are not unique to the kinship group, each similarly underpin the strengthening of relationships and interrelationships. For instance, as one Waitangi Tribunal report explains, “[m]anaaki was given especially to those who would live or align with the tribal group”.272
• 3.125 Kaitiakitanga has procedural implications. For instance, Marsden noted that although humans could harvest resources, they were “duty bound” to thank and appease the kaitiaki of those resources.273 In the flagship report Ko Aotearoa Tēnei, the Waitangi Tribunal considered that mana and kaitiakitanga go together and those who have mana “must exercise it in accordance with the values of kaitiakitanga — to act unselfishly, with right mind and heart, and with proper procedure”.274
• 3.126 Each of these responsibilities may also aid the satisfaction of utu. In some circumstances, kaitiakitanga, manaakitanga or aroha might be required for utu to be discharged.

²⁶⁸ Pita Sharples Notes of evidence at 129, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.264].

²⁶⁹ Ross Gregory Brief of evidence, #F28 at 5, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.220], discussing tuku: an offer to share, or being presented with the opportunity to share, or bestowing a gift on someone.

²⁷⁰ Te Rua Rakuraku and Donald Kurei Joint affidavit, 21 January 2022 at [20], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.8].

271. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuatahi (Wai 262, 2011) at 23.

²⁷² Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997) at 26.

²⁷³ Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 67; see also Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 105.

²⁷⁴ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuarua (Wai 262, 2011, vol 1) at 17.

Summary: responsibilities as associated norms

• 3.127 We have termed kaitiakitanga, manaakitanga, aroha and atawhai “associated norms”. They each reflect obligations that are associated with and intrinsic to concepts earlier described in the chapter, including whanaungatanga and mana. Fulfilling these responsibilities works towards or maintains a desired situation such as mana, whanaungatanga, utu or ea. Such responsibilities are fundamental to upholding tikanga as a structured system. They are facilitated by the processes and procedures called kawa that likewise work to maintain and express the primary structural, prescriptive and relational concepts we have discussed.

PROCESSES AND PROCEDURES (KAWA)

• 3.128 The meaning of kawa appears to vary between hapū and iwi and is not a universal term. However, the simplest and most widely accepted meaning is that kawa means process or procedure.275 As Te Riaki Amoamo considers, “[k]awa are etiquette and protocols. They are the protocols that keep things operating smoothly.”276 Royal writes:277

A key feature of kawa is that it orders behaviours in a certain pattern. That is, a kawa tells us that certain tikanga should take place at a certain time and in a certain order ... a kawa arranges tikanga into a particular order or pattern.

• 3.129 To distinguish between tikanga and kawa, Durie for instance describes tikanga as “Māori law” and kawa as “ritual and procedure”.278 Kruger explains:279

The practice or practical expression of tikanga is sometimes distinguished from the guiding principles of tikanga itself. These protocols are referred to as kawa, and are always grounded in the principles of tikanga.

• 3.130 Kruger explains that “[k]awa ... are first and foremost coercive and normative in nature”.280 Temara considers kawa to be “tikanga wrapped in tapu”.281 The tapu nature of kawa can lead to some rigidity that may make kawa less susceptible to change than tikanga — it has been said that “tikanga can be interchangeable where kawa is rigid like the rising and setting of the sun”.282 However, kawa can also vary according to context. For example, different karakia may be required to lift or reduce tapu depending on its nature.283 Kawa

²⁷⁵ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 3. While not every iwi or hapū adopts the term kawa, all will have processes and procedures with consistent purposes.

²⁷⁶ Te Riaki Amoamo Second affidavit, 21 February 2022 at [8], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [3.3].

²⁷⁷ Te Ahukaramū Charles Royal “An organic arising: an interpretation of tikanga based upon the Māori creation traditions” in Ngā Pae o te Māramatanga Tikanga Rangahau Mātauranga Tuku Iho | Traditional Knowledge and Research Ethics Conference Proceedings 2004 (Ngā Pae o te Māramatanga, Auckland, 2005) 206 at 227.

²⁷⁸ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 4.

279. Vivian Tāmati Kruger Statement of evidence, 2 June 2020 at [39], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [3.2].
280. Vivian Tāmati Kruger Statement of evidence, 2 June 2020 at [39], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [3.2].

²⁸¹ Pou Temara (wānanga held at Rotorua, 25 May 2022).

282. Korohere Crossley Bishop Lloyd Ngāpō Statement of evidence (English translation), 13 October 2020 at [9], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [3.6].
283. See for example Hirini Moko Mead Tikanga Māori: Living by Māori Values (2nd ed, Huia Publishers, Wellington, 2016) at 77.

may change over time to reflect changing circumstances or what the occasion requires.284

Because of the tapu nature of kawa, transgressing kawa may mean punishment.285

• 3.131 We discuss four examples of kawa below: pōwhiri, rāhui, muru and karakia. Each of these processes and procedures illustrates how kawa support Māori society to function. The discussion also shows how kawa work to sustain the basic norms of tikanga in ways that give them a jural dimension. Kawa are techniques and methods connected with the other concepts explained above and used to maintain relationships and mediate disputes. One function of kawa is to mediate between mana, tapu and noa so that they are maintained at appropriate levels. Another is to express whanaungatanga.

Pōwhiri

• 3.132 Pōwhiri processes, through which visitors are welcomed and hosted on a marae, are steeped in kawa. Pōwhiri reflect responsibilities related to mana and whanaungatanga. They manage mana, tapu and noa.
• 3.133 Pōwhiri centre whanaungatanga. In pōwhiri, the exchange of karanga (a ceremonial call), whaikōrero (formal speeches) and the giving and receiving of koha (contributions) acknowledge the responsibilities of both hosts and guests that are associated with whanaungatanga. For example, koha are a tangible way of expressing norms of aroha and atawhai. When groups meet, processes such as mihimihi (introductions) and pōwhiri ensure whakawhanaungatanga (making connections) is a focus. Pōwhiri acknowledge relationships that must be referenced, drawing connections between manuhiri and the host group and links with those who have passed.286 A primary function of pōwhiri is to ensure that relevant connections are made. When manuhiri arrive and are welcomed onto the marae, the first connections made through the karanga are ancestral connections. The host group are calling their own ancestors forward to meet and welcome deceased loved ones that accompany the visiting manuhiri.287
• 3.134 The pōwhiri process expresses manaakitanga and ultimately reflects on the mana of both groups.288 Russell Bishop explains how acknowledgements of both groups’ mana are reflected in pōwhiri protocols.289
• 3.135 Pōwhiri regulate tapu and noa. Pōwhiri processes are an example of detailed and carefully orchestrated steps that are taken to achieve noa. Manuhiri enter the marae ātea (the ground in front of the wharenui) in a state of tapu with their mate (dead). They are not free to engage with their hosts or consume food until noa has been achieved.

²⁸⁴ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 8–9.

285. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.104].
286. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [4.14].
287. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [4.14].
288. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.87]–[3.89].
289. Russell Bishop “Collaborative research stories: whakawhanaungatanga” (PhD Thesis, University of Otago, 1995) at 130– 139 and 159.

Rāhui

• 3.136 Rāhui restore balance. In this way, rāhui have links with the concepts earlier identified as prescriptive: mauri, utu and ea. A rāhui involves restricting the use of a natural resource or an area by implementing a state of tapu to protect it.290 Publicly notifying this status, a rāhui pou (a post) imbued with mauri may be set in the ground to mark a restricted area. This is a purpose that must be honoured by all.291
• 3.137 A place or natural resource subject to a rāhui will have a right to protection and an immunity from interference. People have a duty to respect the rāhui and cannot access the place or natural resource. Therefore, a rāhui is a good example of a process for managing the powers and responsibilities associated with tapu, and of how tapu (by setting in place a prohibition) facilitates utu and ea.
• 3.138 Rāhui relate to responsibilities. They have connections to whanaungatanga, mana and the norms of responsibility arising from each of these concepts. Placing a restriction on an area will almost always be done to fulfil the responsibilities of whanaungatanga and related to mana. Like pōwhiri, rāhui have the role of regulating tapu and noa. When a rāhui is lifted, noa will be engaged using the protocols of whakanoa.

Muru

• 3.139 Muru is another procedure concerned with balance. Muru is one way to achieve utu and, ultimately, ea. It has been described as a form of restorative justice.292 It has a set protocol. The process of muru includes kōrero, which allows an accusation to be discussed and investigated. The outcome of a muru process will involve a judgement and compensation for both intentional and unintentional harm.293 The muru process enables denunciation of wrongdoing and is most effective when acknowledged by the associated communities. However, it is mana-enhancing for both transgressor and victim — it restores the mana of both.294
• 3.140 Muru may be mediated by associated responsibilities. Waaka explains that the customary “plundering” or restorative justice exacted from an individual, whānau, hapū or iwi by muru is also an act that is done with aroha.295 Manaakitanga obligations are also noted in connection with muru. Mead considers that even during the ritual practice of muru, manaakitanga was shown to the manuhiri who had come to take away the livelihood of those responsible for a transgression.296

²⁹⁰ Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 105.

291. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.29].

²⁹² Hirini Moko Mead and Pou Temara Statement of tikanga, 31 January 2020 at [60]–[61], as cited in Ellis v R (Continuance)

[2022] NZSC 114, [2022] 1 NZLR 239.

²⁹³ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 166–176.

²⁹⁴ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 77– 79; see also Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 167–168.

²⁹⁵ Tamati Waaka Statement of evidence, 4 January 2017 at [101]–[104], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.292].

²⁹⁶ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 33.

Karakia

• 3.141 Many tikanga practices require karakia to ensure positive outcomes, safeguarding protection and wellness for all.297 According to Barlow, karakia are:298

... pleas, prayers, and incantations addressed to the gods who reside in the spirit world. Karakia are offered so that the gods may intercede in the affairs of mortal men by providing comfort, guidance, direction, and blessings for them in their various activities and pursuits.

• 3.142 Karakia is a procedure that permeates Māori society, reflecting the belief that it is not a closed system but rather “interpenetrated” by the spiritual world.299 Barlow explains the “repertoire” and different functions of karakia:300

There are many types of karakia, and in ancient times all people used some form of prayer in daily life and on special occasions. Some prayers have special ritual functions, while others are used for protection, purification, ordination, and cleansing. In traditional Māori society, people of all classes, from children to adults and priestly experts, possessed a repertoire of karakia for use in all kinds of situations.

• 3.143 A key function of karakia is to connect to the surrounding wairua (other realities). For this reason, karakia can be a tapu practice and care is required to ensure that they are conducted correctly.301 Karakia draw connections to atua Māori and tūpuna and may request their guidance, protection or help.302 Karakia facilitate whanaungatanga by sustaining connections to atua Māori and those who have passed away.303 Karakia are used to implement a state of tapu, to reduce tapu, or to render something noa. Overall, karakia play a vital role in administering tikanga.

Summary: significance of kawa in normative and jural terms

• 3.144 Pōwhiri, rāhui, muru and karakia are examples of kawa concerned with giving effect to the normative tikanga framework we have discussed in this chapter. These kawa are concerned with recognising relationships, ensuring balance, administering tapu and acknowledging mana. Kawa can be seen as having a jural dimension in that they are procedural mechanisms. Kawa play a significant role in managing tikanga in daily life. Their significance in normative and jural terms should not be underestimated.
• 3.145 While we have noted the tendency of kawa to be relatively inflexible, the following accounts (each anonymised to maintain the privacy of affected hapū) also show how a search for what is tika or correct in the circumstances will prevail over strict adherence to these protocols.

297. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.107].

²⁹⁸ Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 37.

299. Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 20.

³⁰⁰ Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 37.

301. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.106].
302. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.107].
303. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.12].

• 3.146 A travelling group of senior kaumātua (male elders) made a stop within the lands of a hapū with only very distant whakapapa connections. While there, one of the kaumātua passed away. The group sought permission to allow the tūpāpaku (deceased) to remain at a local marae while they completed their journey, promising to return to collect him. According to the kawa of that marae, any tūpāpaku lying on the marae for more than three days had to be buried locally. The travelling group did not return within this time. When they did return and realised that kawa would require the tūpāpaku to remain, they spoke of the sorrow and whakamā that would be caused if they returned home without the tūpāpaku and asked permission to cut his nails so that they might at least return with this part of him. The locals were so affected by this kōrero that, although it would involve a breach of their kawa, the tika or correct response was to allow them to return to their home with the tūpāpaku.304
• 3.147 In another example, a young man left his home to live within the whenua of a related hapū. When he died many years later, even though he did not belong to the local hapū, he was taken to the local marae for his tangihanga. When they heard of his passing, a whānau group from his homeland travelled to the marae to claim him. The local koroua who held the speaking rights noticed that the visiting group only had female speakers. This was problematic because the strict kawa of that marae was that only men could speak on the paepae (an expression meaning in this context that only men would be allowed to speak). However, they set aside their kawa after resolving that they could not deprive the visiting whānau of the right to claim their tūpāpaku. The generosity impressed the visiting whānau. They in turn resolved that the tūpāpaku should not be removed to his former home. To the whānau, the local hapū had shown that they would properly discharge their responsibility to care for him.305

NORMS BOUNDED BY WHAKAPAPA

• 3.148 In this concluding section, we return to the concept of whakapapa, reflecting on its place as a regulator and a decision-making guide. Whakapapa underlies all of the tikanga norms we have discussed. Tikanga concepts are bounded by reference to it. We consider that whakapapa is integral to understanding tikanga concepts such as whanaungatanga and mana, to keeping tikanga concepts within their proper bounds and to engaging with the concepts of responsibility.
• 3.149 Both whakapapa and whanaungatanga are expansive concepts and have the capacity to embrace new collectives. Neither one is fixed or static or confined to traditional tribal collectives. On the contrary, whakapapa and whanaungatanga are mechanisms for identifying connection and can evolve to embrace new relationships and new contexts.306 However, their primary normative and jural significance lies in ensuring that the order of things is properly layered, the connection to kāwai tupuna (line of descent, lineage) is acknowledged, relationships to the natural world, place and people are nurtured, associated responsibilities are discharged, and the processes for engagement that have

³⁰⁴ This account was provided to us by Pou Temara (May 2023).

³⁰⁵ This account was provided to us by Joan Metge (July 2023).

³⁰⁶ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 5.

been carefully laid down over generations are followed. Importantly, other concepts are never divorced from this foundation.307 For example, as we earlier reflected:

(a) Mana arises from the atua Māori and other whakapapa-based connections.308

(b) Kaitiakitanga (associated with mana) connects back to whakapapa. It is applied “within kin group social organisation”.309 It “is a direct result of that genealogical relationship”.310

(c) Whanaungatanga is a broad understanding of kinship that makes lateral connections, in ways which can overlap with whakapapa.

• 3.150 Tikanga concepts may have the capacity to expand into untried contexts, but from time to time this will risk unduly straining their meaning. Whakapapa provides one way to set a boundary around such expansion. It is for this reason that we began our discussion of tikanga concepts from within the wharenui — which is an embodiment of whakapapa. It represents a space safeguarding the integrity of tikanga, and within which tikanga concepts can be more genuinely understood.

CONCLUSION

• 3.151 In this chapter, we have outlined how tikanga concepts can be understood as a complete, coherent and connected system of norms and as having jural qualities. We have shown how tikanga concepts give rise to powers, rights, duties, liabilities and other interests or restrictions that govern relationships. The functions that tikanga concepts perform in Māori society are readily expressed in jural ways. They are widely and consistently understood by Māori in these ways. To appropriately engage with tikanga, it is important to conceive of tikanga as an entire system with concepts connected to one another and working together as we have described.

³⁰⁷ Moana Jackson Statement of evidence, 3 May 2012 at [93]–[94], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.6]; Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 69: a “process within which other ideas and concepts can be structured into a coherent format”.

³⁰⁸ Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 60–61; Joseph Williams “He aha te tikanga Maori” (unpublished paper for Te Aka Matua o te Ture | Law Commission, 1998) at 11–12.

³⁰⁹ See particularly: Merata Kawharu “Kaitiakitanga: a Maori anthropological perspective of the Maori socio-environmental ethic of resource management” (2000) 109 The Journal of the Polynesian Society 349 at 349–350 (“applied within kin group social organisation”); see too Joseph Williams “He aha te tikanga Maori” (unpublished paper for Te Aka Matua o te Ture | Law Commission, 1998) at 14.

310. Joseph Williams “He aha te tikanga Maori” (unpublished paper for Te Aka Matua o te Ture | Law Commission, 1998) at 10.

CHAPTER 4

A guide for engaging with tikanga

INTRODUCTION

• 4.1 In this chapter, we set out a guide for engaging with tikanga and apply it to six hypothetical case studies. Our approach continues to build upon Chapter 3, which analysed tikanga as a system of norms with legal implications. The step-by-step approach that we now set out in the form of a guide broadly reflects the way we have grouped and described tikanga concepts in Chapter 3. The guide and case studies are intended to assist people working in a legal or policy context to build their understanding of how these tikanga concepts may interact and be applied in different factual situations.
• 4.2 Tikanga concepts and their application and interaction are often implicit, making it difficult for those who are not familiar with tikanga to understand them. Those less familiar with tikanga may find value in working through the sequence of questions set out in the guide to clarify their thinking and lay groundwork for their own analysis of different factual situations. However, when developing the guide we have also been cautious because there are limits to how much assistance a guide can give when it comes to engaging with tikanga. Of the several considerations we ask future users of the guide to bear in mind, above all it will be important for them to read the guide alongside Part Three where (in both Chapters 8 and 9) we emphasise the need to develop processes that involve those with tikanga expertise. The guide is suggested as just one aid to clearer understanding. By itself, it will not equip users to competently undertake tikanga analysis. When applying the guide, it will be proper and necessary in many situations to seek guidance from pūkenga tikanga (tikanga experts). The guide may help to inform these conversations.
• 4.3 The six case studies supporting the guide have been developed mainly to illustrate the guide’s application. However, they also help to show some of the ways in which tikanga works, including nuances that can arise in relation to different tikanga concepts. In this way, the case study analysis should bring readers from our theory of tikanga as a normative system to a more applied understanding of tikanga. That is why this chapter completes Part One of this Study Paper.

USING THIS GUIDE

• 4.4 For future users, there are several things to be aware of when using this guide.
• 4.5 First, consistent with the mātauranga (Māori knowledge) grounded approach that Part One of the Study Paper has taken, the guide intentionally focuses solely on tikanga rather than on the interaction between tikanga and state law. This is because we think it is preferable to first understand how tikanga concepts might be engaged in a factual situation before moving to the state law processes that we address in Part Three. For those who use the guide in a legal or policy context, the guide is therefore best viewed as an initial analytical or information-gathering step, and as one way of clarifying operative tikanga-focused facts.
• 4.6 Second, the guide focuses on tikanga concepts we identify as important and common. However, it is also open-ended to enable consideration of other relevant tikanga as well as iwi, hapū and whānau expressions of tikanga. This should help future users of the guide to accommodate all factual situations and facilitate analysis that accurately and appropriately engages with tikanga. In particular, this may arise when considering tikanga responsibilities and when identifying any relevant kōrero tuku iho (oral traditions), because the guide names only some common examples of responsibilities and kōrero tuku iho. For instance, whereas Chapter 3 focused on responsibilities of kaitiakitanga (guardianship), manaakitanga (giving to others) and aroha (love, concern), some of our case studies also identify kotahitanga (unity) as a further responsibility arising from the factual situations described.1 Examples of kōrero tuku iho suggested below include whakataukī and whakatauākī (proverbs), waiata (song) and mōteatea (a chant or lament).
• 4.7 Third, the guide proposes a systematic analysis of tikanga rather than an approach that goes directly to obviously applicable individual tikanga concepts. A systematic approach is consistent with viewing tikanga as an integrated system of norms. It also helps to avoid the risk of placing undue focus on a particular concept (especially intuitively powerful and important concepts such as mana) and overlooking the application and interaction of other relevant tikanga. That said, the guide will still help to determine what tikanga concepts are primarily engaged, and whether particular concepts warrant consideration.
• 4.8 Fourth, as we said above, users of the guide may find it beneficial to consult with pūkenga to obtain guidance on appropriate sources of information or to test preliminary analysis. However, we would not suggest asking pūkenga to work through the guide and supply the analysis themselves. Pūkenga do not need a guide, nor will they necessarily be able to work within the parameters of a guide. For pūkenga, implicit tikanga concepts will be obvious. Instead, we would suggest asking pūkenga which tikanga concepts they consider are relevant in a factual situation and reflecting their responses in the analysis. It may be helpful to begin by asking them, for example, whether and how whakapapa is engaged — in other words, inviting them to describe any relevant genealogical and historical connections that explain how the parties to the case and any lands and waters are connected. In this way, the guide can act as a bridge between those steeped in tikanga and those who need to understand its application and interaction for the purposes of legal and policy work.
• 4.9 Fifth, it is important to understand that precedent in tikanga is not applied in the same way as the common law principle of stare decisis.2 Tikanga outcomes (even in very similar

¹ Kotahitanga, meaning unity, was discussed in Chapter 2 as a central principle of the wharenui.

2. Stare decisis means “to stand by things decided” in Latin. It is a common law principle that directs courts to adhere to previous judgments of the same or higher courts when resolving a case with allegedly comparable facts.

situations) can be broad ranging. What is important is that the outcomes are responsive to the context and are consistent with the underlying tikanga concepts. Similarly, when kōrero tuku iho such as pūrākau (legendary narratives) are shared, as we do in the case studies which follow, their primary purpose is to build understanding of the meaning of the relevant tikanga rather than as a source of precedent. They are not intended to be analysed in the same ways as we might be accustomed to do with case law. However, they may influence thinking about a problem and can help to build understanding of the significance of the tikanga and its context.

• 4.10 Lastly, in some ways such a structured guide runs counter to the flexible nature of tikanga. However, on balance we think this is outweighed by potential benefits in the legal and policy context. We acknowledge that tikanga operates within Māori communities every day without the need for any written guide. The purpose of this guide is to support proper engagement with tikanga in the context of state law. It may also support iwi, hapū and whānau when from time to time they seek assistance from state law. What we offer is merely one method that encourages future users to recognise tikanga as an integrated system and engage with it in a way that we think promotes and protects the integrity of tikanga. Future users will need to exercise their own judgement carefully when deciding when and how rigorously to apply the guide.

HOW WE DEVELOPED THIS GUIDE AND THE CASE STUDIES

• 4.11 The guide and case studies were developed in consultation with pūkenga from Te Whare Wānanga o Awanuiārangi. We consider that the guide can apply in any factual context where tikanga concepts are or may be in application or interaction. It has three overall steps, each expanded on below. The steps are to:

(a) Identify tikanga as it relates to the factual situation.

(b) Identify relevant kōrero tuku iho and related mātauranga.

(c) Identify other similar situations.

• 4.12 The case studies which then follow are informed by both kōrero shared with us by the Awanuiārangi pūkenga and our own understanding of tikanga and state law. Each case study has been developed to outline a realistic, contemporary scenario that also generates (or may generate) an interface between tikanga and state law. Together, the case studies work to capture a range of tikanga concepts in application and interaction.
• 4.13 The case studies are hypothetical, with fictional names for people and generic names for hapū assigned using a reo Māori numbering format. Two of the case studies draw on work by Te Aka Matua o te Ture | Law Commission relating to surrogacy and succession law. Where we articulate the tikanga of iwi, hapū and whānau and identify similar situations in the case studies, this is at a high level in a way where the tikanga described might be generally accepted by iwi, hapū and whānau as one realistic way of doing things.
• 4.14 For each case study, we first set out the factual situation and then work through the steps in the guide.

A GUIDE FOR ENGAGING WITH TIKANGA

STEP 1: IDENTIFY THE TIKANGA

Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following: (a) The structural concepts of whakapapa and whanaungatanga. (b) The relational concepts of mana, tapu and noa arising from the status of an entity and: (i) to the extent mana is engaged, its source; and (ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri. (c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha. (d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance. (e) Any other concepts of tikanga Māori that are engaged. (f) Any tikanga processes or procedures that have been, are, or could be engaged.

STEP 2: IDENTIFY RELEVANT KŌRERO TUKU IHO AND RELATED MĀTAURANGA, INCLUDING, FOR EXAMPLE, WHAKATAUKĪ, WHAKATAUĀKĪ, WAIATA AND MŌTEATEA

Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.

STEP 3: IDENTIFY OTHER SIMILAR SITUATIONS

(a) Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau. (b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau. (c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

CASE STUDY 1: A TONO FOR A TŪPĀPAKU

The facts

When Ngārimu passes away, he is taken by one of his hapū, Ngāti Tuarua, to their marae. Ngārimu has whakapapa (connections) to Ngāti Tuarua through his maternal grandmother Aroha. He has lived near the marae for most of his life and was very close to Aroha when he was a child. Ngārimu served on the committee of the marae for 20 years before he died and was considered by Ngāti Tuarua to be a hapū leader with authority to speak on the marae. A large tangihanga is organised by Ngāti Tuarua and plans are made for the burial to take place at the urupā (cemetery) next to the marae.

At the first pōwhiri (welcome) for the tangihanga, a large group from another hapū, Ngāti Tuatahi, comes onto the marae. During whaikōrero (formal speeches), Ngāti Tuatahi makes a tono (request) for the tūpāpaku (deceased), claiming that Ngārimu should be buried at the urupā next to the marae in their rohe (region). In the tangihanga context, a tono is a tikanga process through which a group makes a request to another group to take possession of the tūpāpaku. For example, this may be to spend a night at a different marae or for a burial elsewhere. In this case, the tono is based on the tikanga of Ngāti Tuatahi around whakapapa. Ngārimu has whakapapa to Ngāti Tuatahi through his paternal grandfather Rangi, and according to Ngāti Tuatahi tikanga, he needs to be buried with his paternal whakapapa just as Ngārimu’s father was. Ngāti Tuatahi also says Ngāti Tuarua needs to defer to Ngāti Tuatahi tikanga because their tupuna (ancestor) Tuatahi was the tuakana (elder sibling) of Tuarua.

The whānau pani (bereaved family), the immediate whānau of Ngārimu, are visibly upset. His children want him to be buried at the urupā next to the marae of Ngāti Tuarua, the hapū to which they feel the strongest connection. A kuia (older woman) of Ngāti Tuarua suddenly stands behind the paepae (meaning, in this context, the assembled speakers) and says, “Kei ngā tamariki ngā kupu tuatahi e pā ana ki tēnei tono” (the children will be the first to speak regarding this tono).

The pōwhiri stops, and the whānau pani and leaders of both Ngāti Tuarua and Ngāti Tuatahi go into the wharekai (dining hall). In the wharekai, the whānau pani express their preference for the burial of Ngārimu to take place at the urupā next to the marae of Ngāti Tuarua.

After the whānau pani have expressed their views, discussions recommence on the marae ātea (space in front of the wharenui), with Ngāti Tuarua and Ngāti Tuatahi going back and forth. The discussion is long and tense. Eventually, the hapū agree that Ngāti Tuatahi does have a greater claim in tikanga to the tūpāpaku than Ngāti Tuarua. The hapū therefore agree that Ngārimu will stay at the marae of Ngāti Tuarua for two nights before being moved to the marae of Ngāti Tuatahi for the third night, with the burial to take place at the urupā of the marae of Ngāti Tuatahi the following day.

As agreed between the hapū, the tūpāpaku is moved to the marae of Ngāti Tuatahi for the third night. While everyone is in the wharekai having dinner, the whānau pani, who are sitting with the tūpāpaku, take the tūpāpaku and go back to the rohe of Ngāti Tuarua. Before they can be stopped, the whānau pani bury the tūpāpaku at the urupā next to the marae of Ngāti Tuarua.

Figure 8: The relationships and positions of the hapū, Ngārimu and the whānau pani

Applying the guide to case study 1

Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following:

(a) The structural concepts of whakapapa and whanaungatanga.

STEP 1: IDENTIFY THE TIKANGA

• 4.15 Ngārimu and the whānau pani whakapapa to both Ngāti Tuarua and Ngāti Tuatahi. The whakapapa of Ngārimu to Ngāti Tuatahi through his paternal grandfather Rangi is the primary reason for the request being made by Ngāti Tuatahi. Ngāti Tuarua and Ngāti Tuatahi also whakapapa to each other. This is because the ancestor named Tuatahi of Ngāti Tuatahi was the tuakana of the ancestor named Tuarua of Ngāti Tuarua.
• 4.16 Whanaungatanga is engaged between Ngāti Tuarua and Ngāti Tuatahi through their whakapapa to each other. Whanaungatanga is also engaged between the whānau pani and the two hapū as a result of the whakapapa of the whānau pani to the hapū. This whanaungatanga generates responsibilities, which are introduced below.

(b) The relational concepts of mana, tapu and noa arising from the status of an entity and:

(i) to the extent mana is engaged, its source; and

(ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri.

(ii)

• 4.17 Mana is strongly engaged. The hapū, the whānau pani and Ngārimu each have mana. The source of the mana of the hapū is mana tupuna (ancestral mana). The sources of the mana of the whānau pani and Ngārimu are mana tangata (a person’s mana) and mana tupuna. The mana of the hapū, the whānau pani and Ngārimu will be diminished,

maintained or enhanced depending on how they fulfil responsibilities consistent with their mana. In this factual situation, these responsibilities are the same as those arising from whanaungatanga.

• 4.18 Tapu is engaged in this context because tūpāpaku are very tapu. The whānau pani are also in a state of tapu due to their close whakapapa to Ngārimu. Noa is not strongly engaged, but it is notable that whānau pani are generally not considered noa until after the burial, when a hākari (feast) takes place. The hākari would normally operate to whakanoa (reduce or remove tapu) the tapu of the whānau pani. In this instance, to enable the whānau pani to express their views in the wharekai, which is a noa space, the tapu of the whānau pani was briefly lifted. The whānau pani returned to their tapu state when discussions recommenced on the marae ātea.
• 4.19 Mauri is not strongly engaged. When Ngārimu died his mauri was extinguished.

(c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha.

• 4.20 Responsibilities arising from whanaungatanga and connected with mana include manaakitanga and aroha. In this factual situation, the whanaungatanga that exists between Ngāti Tuarua and Ngāti Tuatahi as a result of their whakapapa to each other includes the responsibility of showing manaakitanga and aroha towards each other and in relation to Ngārimu.
• 4.21 In this factual situation, a further responsibility of kotahitanga (unity) is applicable. The whanaungatanga between the whānau pani and the two hapū that exists as a result of the whakapapa of the whānau pani generates a responsibility by the whānau pani to act in accordance with the principle of kotahitanga. In turn, Ngāti Tuarua and Ngāti Tuatahi have responsibilities to show aroha and manaakitanga to the whānau pani.
• 4.22 Consistent with these responsibilities:

(a) Ngāti Tuarua and Ngāti Tuatahi fulfilled their responsibilities to show aroha and manaakitanga to each other and in relation to Ngārimu during the pōwhiri, where they agreed to what would happen with the tūpāpaku. Their actions enhanced the mana of both the hapū and Ngārimu. The hapū will need to continue showing aroha and manaakitanga to each other as the take (issue) is addressed.

(b) The hapū also had responsibilities to show aroha and manaakitanga to the whānau pani. The hapū fulfilled these responsibilities to the whānau pani by allowing the tapu to be lifted so that the whānau pani could express their views in the wharekai. It is worth noting that these are ongoing responsibilities, which means aroha and manaakitanga need to continue to be shown by the hapū to the whānau pani.

(c) The whānau pani had responsibilities to act in accordance with kotahitanga. The whānau pani needed to do what was agreed between the hapū. This responsibility was not fulfilled.

(d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance.

• 4.23 The take in this factual situation is that the whānau pani have not fulfilled their responsibilities to act in accordance with kotahitanga. The whānau pani acted in a way that was contrary to a process where an outcome considered proper had been agreed to by the hapū. As a result, the actions of the whānau pani have diminished the mana of themselves, Ngāti Tuarua, Ngāti Tuatahi and Ngārimu. The take is particularly serious, because the whānau pani also breached their own tapu and the tapu of the tūpāpaku when they took the tūpāpaku back to the rohe of Ngāti Tuarua. The normal hākari that would take place after the burial to whakanoa the whānau pani has also not occurred, meaning the whānau pani remains in a state of tapu.
• 4.24 In this situation, an utu is required for a state of ea to be achieved. Ngāti Tuarua and Ngāti Tuatahi will need to agree on the utu, and this is likely to require a hui (gathering). At the hui, options which might be discussed include:

(a) Kōrero (addresses) to one another and koha (offerings) in the form of taonga (valuable objects) being exchanged that, if accepted, may be sufficient utu for a status of ea to be achieved.

(b) Alternatively, or in addition, the hapū may agree that the only way to achieve a state of ea and restore the mana of all involved as well as remedy the breach of tapu may be to hahu (exhume) the tūpāpaku and return it to the urupā next to the marae of Ngāti Tuatahi.

• 4.25 In determining and carrying out the appropriate utu, the hapū will need to be mindful of their responsibilities to show aroha and manaakitanga to the whānau pani. The whānau pani will also need to be mindful of their responsibilities to act in accordance with kotahitanga so that a state of ea can be achieved.

(e) Any other concepts of tikanga Māori that are engaged.

• 4.26 Tika (what is right) is engaged in this factual situation because the hapū engaged in a customary process of making their request during the pōwhiri. Through that process, an outcome was reached that was considered tika by the hapū. The whānau pani acting contrary to the tika outcome is one reason for the take.

(f) Any tikanga processes or procedures that have been, are, or could be engaged.

• 4.27 A tono is the tikanga process engaged in this case. As earlier explained, a tono allows a group to make a request to another group to take possession of the tūpāpaku.
• 4.28 The whānau of Ngārimu are what is sometimes known as the whānau pani or kirimate, which refers to the bereaved whānau. In tikanga, the whānau pani or kirimate are not able to speak during a tangihanga or participate directly in its organisation due to being in a heightened state of tapu. The state of tapu is brought about by the close whakapapa of the whānau pani or kirimate to the tūpāpaku.
• 4.29 The pōwhiri was a customary process Ngāti Tuatahi engaged in during the tangihanga in order for the tono to be made.
• 4.30 Utu may involve hui, kōrero, the exchange of koha in the form of taonga and/or an exhumation in order for a state of ea to be achieved.

Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.

STEP 2: IDENTIFY RELEVANT KŌRERO TUKU IHO AND RELATED MĀTAURANGA, INCLUDING, FOR EXAMPLE, WHAKATAUKĪ, WHAKATAUĀKĪ, WAIATA AND MŌTEATEA

• 4.31 In the Māori world view, death is strongly associated with the transition of Hinetītama to Hinenuitepō and the pūrākau concerning the fatal attempt of Māui to secure immortality for humankind. According to some iwi and hapū, the final resting place of those who have died is Rarohenga, where Hinenuitepō resides. This pūrakau indicates the tapu or sacred nature of the burial process and therefore the care with which it must be handled.

(a) Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau.

(b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau.

(c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

STEP 3: IDENTIFY OTHER SIMILAR SITUATIONS

• 4.32 Ngāti Tuarua have recently exhumed one of their tupuna who they wished to be returned to the urupā next to their marae. The hahu took years to negotiate by the hapū involved, but it has restored the mana of those hapū.
• 4.33 Twenty years ago, another whānau pani of the iwi of Ngāti Tuatahi took a tūpāpaku in the night and buried it contrary to what had been agreed to by the iwi. In that context, there was no hahu, but taonga were exchanged as utu in order for a state of ea to be achieved.

CASE STUDY 2: CUSTODIANSHIP OF TAONGA AND ŌHĀKĪ

The facts

Nīkau is the custodian of three whānau taonga (family heirlooms): a mere pounamu (greenstone club), a heitiki (greenstone pendant) and a korowai (cloak). He has four children, including Pita, the mātāmua (oldest child) and Rāwiri, the pōtiki (youngest child). In their whānau, custodianship of the three whānau taonga has been passed down through the mātāmua. This tikanga was established over a century ago when a tupuna of the whānau and rangatira of their hapū said in an ōhākī (oral statement made prior to death), “Mā ngā mātāmua ngā taonga hei tiaki” (the oldest children shall have custody of the taonga).

Rāwiri, the pōtiki of the whānau, is married to Sarah who is from Germany. Sarah moved to Aotearoa New Zealand when she was nine. Rāwiri and Sarah have several children. They have also lived with and cared for Nīkau for the last five years. Nīkau has relied heavily on Rāwiri and Sarah in his old age, and he is grateful for their support. Living with Rāwiri and Sarah has also meant Nīkau has been able to spend a lot of time with his mokopuna (grandchildren).

The health of Nīkau deteriorated rapidly two weeks ago, and he passed away suddenly. Before Nīkau passed away, he told Rāwiri and Sarah in an ōhākī that he would leave the three whānau taonga to them. His will states that the whānau taonga are to be passed down in accordance with tikanga.

Figure 9: The relationships and positions of the whānau taonga, Nīkau, Pita, Rāwiri and Sarah

Applying the guide to case study 2

Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following:

(a) The structural concepts of whakapapa and whanaungatanga.

STEP 1: IDENTIFY THE TIKANGA

• 4.34 Nīkau and his children whakapapa to each other. They also whakapapa to the ancestor who established the tikanga regarding the whānau taonga in the initial ōhākī.
• 4.35 The whānau taonga whakapapa to the natural resources from which they have been made, tracing back to the atua (ancestor-god) credited with creating those natural resources. The whānau taonga also whakapapa to their custodians, tracing back to the person or people who created them.
• 4.36 Whanaungatanga is engaged between Nīkau and his children because of their whakapapa to each other. Whanaungatanga is also engaged between Nīkau and Sarah because of their relationship. This whanaungatanga generates responsibilities that include Nīkau, his children and Sarah showing manaakitanga and aroha towards each other.
• 4.37 Whanaungatanga is also engaged between the custodians of the whānau taonga and the whānau taonga themselves. This is because of the whakapapa of the whānau taonga to their custodians, tracing back to the person or people who created them. This whanaungatanga generates kaitiakitanga responsibilities for the custodians to fulfil as well as responsibilities to show manaakitanga and aroha to the whānau taonga.

(b) The relational concepts of mana, tapu and noa arising from the status of an entity and:

(i) to the extent mana is engaged, its source; and

(ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri.

(ii)

• 4.38 Nīkau, his children and Sarah each have mana. The sources of mana of Nīkau and his children are mana tangata and, reflecting Nīkau’s Māori ancestry, mana tupuna. The source of Sarah’s mana is mana tangata. Nīkau, his children and Sarah will diminish, maintain or enhance their mana depending on how they fulfil responsibilities that are consistent with mana. In this context, the responsibilities related to the mana of Nīkau, his children and Sarah are the same as those of whanaungatanga described above. The individuals need to show manaakitanga and aroha towards each other, and the custodians of the whānau taonga need to fulfil their kaitiakitanga responsibilities as well as show manaakitanga and aroha to the whānau taonga.
• 4.39 The whānau taonga also have mana. The source of the mana of the whānau taonga is mana atua (mana of the atua Māori). This is because the whānau taonga whakapapa to the natural resources from which they have been made, tracing back to the atua credited with creating those natural resources.
• 4.40 While tapu and noa are not strongly engaged, the whānau taonga are inherently tapu to a degree that demands respect. This tapu arises in two ways. It arises through the whakapapa of the taonga to the atua. It also arises through the whakapapa of the whānau taonga tracing back to the person or people that created them.
• 4.41 The ōhākī of both the tupuna and Nīkau are also tapu and demand respect.
• 4.42 Each of the whānau taonga has a mauri. Custodians of the whānau taonga will help to protect the mauri of the whānau taonga by fulfilling their kaitiakitanga responsibilities and respecting the tapu of the whānau taonga.

(c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha.

• 4.43 In this factual situation, the relevant responsibilities arising from whanaungatanga and associated with mana are manaakitanga, aroha and kaitiakitanga:

(a) The children of Nīkau and Sarah will need to show manaakitanga and aroha to each other.

(b) The next custodian of the whānau taonga will need to fulfil their kaitiakitanga responsibilities as well as show manaakitanga and aroha to the whānau taonga.

(d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance.

• 4.44 The take in this context is that there have been two ōhākī that stipulate different testamentary wishes for the same whānau taonga. The appropriate utu for a state of ea to be achieved is not so much about who the “right” custodian is but about how the whānau reach a decision and whether that process enables all involved to fulfil their responsibilities that are associated with whanaungatanga and with mana.
• 4.45 It is important to understand that one ōhākī does not necessarily take precedence over the other. Tikanga is pragmatic and can adapt to different circumstances. The tikanga in this whānau may allow custodianship of one, two or all of the whānau taonga to go to Rāwiri and Sarah for the remainder of the life of Rāwiri, to acknowledge the ōhākī of Nīkau and Rāwiri and Sarah’s care of him, then revert to the oldest child Pita on the death of Rāwiri. This seems an appropriate result that respects the tapu of both ōhākī and maintains the mana of all involved. Alternatively, the whānau may agree that the ōhākī of Nīkau has adapted the tikanga of the whānau permanently and now the whānau taonga will be passed down through the pōtiki, the youngest child. However, this seems unlikely given that the ōhākī of Nīkau was more narrowly worded than the ōhākī of the tupuna.
• 4.46 Ideally, a decision will be reached by consensus at a whānau hui (a process enabling all to fulfil their whanaungatanga and mana-related responsibilities). If consensus cannot be reached, the whānau may utilise a pūkenga from their broader whānau or hapū to guide them. If there is a dispute, an interface between tikanga and state law may arise.

(e) Any other concepts of tikanga Māori that are engaged.

• 4.47 No other concepts appear to be engaged in this context.

(f) Any tikanga processes or procedures that have been, are, or could be engaged.

• 4.48 An ōhākī is the main tikanga process engaged in this case. An ōhāki can cover a range of matters, including guidance, information not previously disclosed or testamentary wishes. Ōhākī are tapu because the spoken word has an inherent value in tikanga and because a person giving an ōhākī is usually in a state of heightened tapu due to being close to death.
• 4.49 Utu may involve a whānau hui to determine how the take should be addressed for a state of ea to be achieved.

Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.

STEP 2: IDENTIFY RELEVANT KŌRERO TUKU IHO AND RELATED MĀTAURANGA, INCLUDING, FOR EXAMPLE, WHAKATAUKĪ, WHAKATAUĀKĪ, WAIATA AND MŌTEATEA

• 4.50 Some consider the words of Hinetītama, spoken when she realised her father was her lover and before she fled to Rarohenga, to be the first ōhākī. She said:3

I will leave this realm of Te Aotūroa and relocate to Rarohenga and there await our offspring to ensure they safely make passage when they pass from this world into the next. There I will take the name Hine-nui-te-pō.

• 4.51 Her statement was significant because it outlined the fate of humanity on death. It helps to explain why, according to tikanga, ōhākī are considered so tapu.

(a) Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau.

(b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau.

(c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

STEP 3: IDENTIFY OTHER SIMILAR SITUATIONS

• 4.52 Within the hapū to which Nīkau and his whānau belong, another whānau have had issues with whānau taonga not being passed on in accordance with the tikanga of the whānau. Their whānau taonga have gone missing, generating tension and distrust within the whānau.

3. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [2.25].

• 4.53 Another whānau, also from the same hapū, recently complied with a request made in an ōhākī by the custodian of a kahu kiwi (a korowai adorned with the feathers of kiwi). The ōhākī stipulated that the kahu kiwi should be given to a particular master weaver rather than the mātāmua of the whānau. The whānau agreed that this was the right approach because the kahu kiwi needed to be cared for by someone with expertise in kahu conservation. The whānau asked the master weaver to accept requests by the whānau to use the kahu kiwi on special occasions. The whānau and the master weaver also agreed that a consensus will need to be reached by the whānau as to what will happen to the kahu kiwi when the master weaver is no longer able to care for it.

CASE STUDY 3: WHANAUNGATANGA AND BREACH OF CONTRACT FOR SUPPLY

The facts

The trustees of six ahu whenua trusts own land in the central North Island.4 The trustees and the beneficiaries of the trusts are all connected to each other by whakapapa. Whanaungatanga between the beneficiaries is particularly strong because six tūpuna (ancestors) to whom all the beneficiaries whakapapa were killed in battle with a neighbouring hapū in the late eighteenth century.

Most of the whenua (land) in the six trusts is used for dairy farming. However, land that is too steep was planted with mānuka 10 years ago, and the trusts entered into a joint venture arrangement for the purposes of collecting and processing honey.

The joint venture operates through a limited partnership (a type of business structure subject to the Limited Partnerships Act 2008). The six ahu whenua trusts are limited partners in the limited partnership. The general partner company, responsible for managing the limited partnership, has eight directors (one from each of the ahu whenua trusts and two who are independent).

The six ahu whenua trusts employ their whānau to collect honey from their respective whenua, and the employees supply the honey to the limited partnership under contracts of supply. The limited partnership purchased honey processing equipment and leases the premises where the honey is processed using funds contributed to it by each of the ahu whenua trusts.

In the last two years, there has been tension in the joint venture. Poor weather has impacted honey production, which has impacted the supply of honey to the limited partnership and reduced profits.

Earlier this year, a category one cyclone devastated the central North Island. The whenua of ahu whenua trusts 1 and 2 where mānuka had been planted slid away in a mass of debris, and the whānau that collected honey from that whenua had severe flooding in their homes. The whenua of ahu whenua trusts 3, 4, 5 and 6 and the whānau that collect honey from that whenua were not directly affected by the cyclone.

The whānau from ahu whenua trusts 3 and 4 stopped work to help the whānau of ahu whenua trusts 1 and 2 who were affected. They spent four weeks helping the whānau clear the silt from their homes and debris from the whenua. Because of the time spent helping those other whānau, the whānau from ahu whenua trusts 3 and 4 did not collect and supply honey to the limited partnership during those four weeks. The whānau from ahu whenua trusts 5 and 6 that were not directly affected did not stop work to help the whānau of ahu whenua trusts 1 and 2. They kept working and continued to collect and supply honey to the limited partnership.

⁴ An ahu whenua trust is a type of trust constituted under Te Ture Whenua Maori Act 1993, s 215.

Four of the directors of the general partner company (the two from ahu whenua trusts 5 and 6 and the independent directors) are sympathetic to the whānau of ahu whenua trusts 1 and 2, but they are dissatisfied that the whānau from ahu whenua trusts 3 and 4 did not communicate with them that they would stop working to help the whānau from ahu whenua trusts 1 and 2 to clear the silt from their homes and debris from the whenua. The actions of the whānau from ahu whenua trusts 3 and 4 will further impact this year’s profits, which will already be severely affected by the impact of the cyclone on the whenua of ahu whenua trusts 1 and 2 where the mānuka slipped away.

Those four directors consider whether the limited partnership should make a claim against the whānau from ahu whenua trusts 3 and 4 for breach of their contracts of supply. The limited partnership may have a claim because the whānau from ahu whenua trusts 3 and 4 who stopped working to help are unlikely to be able to rely on the force majeure clauses in their contracts (which waive contract performance for a period in the event of an “act of God”) because their whenua and homes were not affected by the cyclone.

When the trustees of ahu whenua trusts 3 and 4 are notified of a potential claim, they respond that the whānau who stopped work to help with the clean-up were acting in accordance with tikanga. They also say that the whānau of ahu whenua trusts 5 and 6 breached tikanga by not stopping work to help.

Figure 10: The joint venture structure and the relationships between the entities,

whānau and whenua

Applying the guide to case study 3

Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following:

(a) The structural concepts of whakapapa and whanaungatanga.

STEP 1: IDENTIFY THE TIKANGA

• 4.54 The whānau all whakapapa to each other. The whānau of ahu whenua trusts 1 and 2 also whakapapa to the land damaged by the cyclone, because it was discovered and named by one of their ancestors.
• 4.55 Whanaungatanga is strongly engaged because of the whakapapa between the whānau and because of the tūpuna to whom they all whakapapa who were killed in battle. In this situation, whanaungatanga generates responsibilities for the whānau of ahu whenua trusts 3, 4, 5 and 6 to show aroha and manaakitanga to the whānau of ahu whenua trusts 1 and 2 in relation to the damage caused by the cyclone. At the same time, the whānau of ahu whenua trusts 3, 4, 5 and 6 have responsibilities to show aroha and manaakitanga to the whānau of ahu whenua trusts 1 and 2 and to each other in relation to the limited partnership. The whānau of ahu whenua trusts 1 and 2 are absolved of their whanaungatanga responsibilities in relation to the limited partnership because they have been severely impacted by the cyclone.
• 4.56 Whanaungatanga is also engaged between the whānau of ahu whenua trusts 1 and 2 and the whenua because of their whakapapa to the whenua. The whānau of ahu whenua trusts 1 and 2 have kaitiakitanga responsibilities to the whenua.

(b) The relational concepts of mana, tapu and noa arising from the status of an entity and:

(i) to the extent mana is engaged, its source; and

(ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri.

(ii)

• 4.57 The whānau of all the ahu whenua trusts have mana. The source of the mana of each whānau in relation to each other is mana tangata and mana tupuna. The whānau of ahu whenua trusts 1 and 2 also have mana in relation to the whenua. The source of this mana is mana whenua (power of the land, authority over land) arising from their connection to the whenua. The basis of their mana whenua is take tupuna (an ancestral claim).
• 4.58 The mana of the whānau will be diminished, maintained or enhanced depending on how they fulfil their responsibilities. In this context, the responsibilities consistent with mana are the same as those of whanaungatanga described above. The whānau of ahu whenua trusts 3, 4, 5 and 6 need to show aroha and manaakitanga to the whānau of ahu whenua trusts 1 and 2 in relation to the damage caused by the cyclone. They also need to show aroha and manaakitanga to the whānau of ahu whenua trusts 1 and 2 and to each other

in relation to the limited partnership. The whānau of ahu whenua trusts 1 and 2 need to fulfil their kaitiakitanga responsibilities to the whenua.

• 4.59 Tapu and noa are not strongly engaged by the factual situation. The whenua that has been affected by the cyclone will be tapu to a degree that demands respect although not to a degree where access must be restricted. This tapu arises in two ways. It arises through the connection of the whenua to Papatūānuku and Tāne (as atua of whenua). It also arises through the whakapapa of the whānau of ahu whenua trusts 1 and 2 to the whenua.
• 4.60 Mauri is not strongly engaged, although the mauri of the whenua is likely to have been affected by the cyclone. The whānau of ahu whenua trusts 1 and 2 will be responsible for restoring the mauri of the whenua by fulfilling their kaitiakitanga responsibilities and respecting the tapu of the whenua.

(c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha.

• 4.61 In this factual situation, the relevant responsibilities arising from whanaungatanga and associated with mana are aroha, manaakitanga and kaitiakitanga:

(a) The whānau of ahu whenua trusts 3, 4, 5 and 6 need to show aroha and manaakitanga to the whānau of ahu whenua trusts 1 and 2 in relation to the damage caused by the cyclone.

(b) The whānau of ahu whenua trusts 3, 4, 5 and 6 need to show aroha and manaakitanga to the whānau of ahu whenua trusts 1 and 2 and each other in relation to the limited partnership.

(c) The whānau of ahu whenua trusts 1 and 2 need to fulfil their kaitiakitanga responsibilities in relation to the whenua.

(d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance.

• 4.62 There are two take in this factual situation:

(a) While the whānau of ahu whenua trusts 3 and 4 have fulfilled their responsibilities to show aroha and manaakitanga to the whānau of ahu whenua trusts 1 and 2 in relation to the damage caused by the cyclone, they have not fulfilled their responsibilities to the whānau of ahu whenua trusts 1, 2, 5 and 6 in relation to the limited partnership. This is because they neglected the collection and supply of honey.

(b) While the whānau of ahu whenua trusts 5 and 6 have fulfilled their responsibilities to show aroha and manaakitanga to the whānau of ahu whenua trusts 1, 2, 3 and 4 in relation to the limited partnership by collecting and supplying honey, they have not fulfilled their responsibilities to the whānau of ahu whenua trusts 1 and 2 in relation to the damage caused by the cyclone.

• 4.63 To achieve a state of ea, utu is required from the whānau of ahu whenua trusts 3, 4, 5 and 6 to remedy their failure to fulfil responsibilities. The trustees may call a hui at which the whānau of ahu whenua trusts 3, 4, 5 and 6 may give koha to the groups in relation to

whom they neglected their responsibilities (the whānau of ahu whenua trusts 1 and 2 and the limited partnership). The koha would be an acknowledgement of the failure to fulfil these responsibilities.

• 4.64 If the koha are accepted, utu will have been achieved, the mana that has been diminished will be restored and there will be a state of ea. It may also be appropriate for the trustees of the ahu whenua trusts to discuss how these situations might be appropriately managed in the future.
• 4.65 The whānau of ahu whenua trusts 1 and 2 may have to provide an utu in response at some point in the future so that utu and therefore ea are maintained among the whānau of the ahu whenua trusts.

(e) Any other concepts of tikanga Māori that are engaged.

• 4.66 No other concepts appear to be engaged in this context.

(f) Any tikanga processes or procedures that have been, are, or could be engaged.

• 4.67 Utu may involve hui and giving koha to achieve a state of ea.

Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.

STEP 2: IDENTIFY RELEVANT KŌRERO TUKU IHO AND RELATED MĀTAURANGA, INCLUDING, FOR EXAMPLE, WHAKATAUKĪ, WHAKATAUĀKĪ, WAIATA AND MŌTEATEA

• 4.68 There are many examples of whakataukī that indicate the significance of helping those in need, particularly those between whom there is whakapapa and/or whanaungatanga. “Ki a koe tētehi kīwai, ki a au tētehi kīwai”, for instance, can be translated to mean that the work or the burden is to be shared equally.5

(a) Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau.

(b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau.

(c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

STEP 3: IDENTIFY OTHER SIMILAR SITUATIONS

⁵ Hirini Moko Mead and Neil Grove Ngā Pēpeha a ngā Tīpuna (Victoria University Press, 2001) at 212.

• 4.69 Other whānau of the hapū to which all the whānau whakapapa ceased work to help people impacted by the cyclone. Many businesses in the area who were not directly affected did not cease work but gave koha to those directly affected.
• 4.70 Three years ago, a hapū from the same iwi to which all the whānau are connected by whakapapa refused to catch and supply kōura (crayfish) to a fisheries joint venture due to evidence of the resource being depleted. The hapū notified other members of the joint venture of their decision and offered to forgo their share of the profits derived from the kōura catch for the season. The joint venture partners acknowledged the offer but still allocated a share of the profits from the kōura to the hapū, to acknowledge that the decision made by the hapū was based in tikanga and reflected kaitiakitanga responsibilities to the resource. The contracts of supply were also amended to waive the requirement to catch and supply a species where to do so would deplete that species in the future.

CASE STUDY 4: MANA MOANA AND CONSULTATION REGARDING THE REGULATION OF A PIPI BED
The facts

Ngāti Tuatoru and Ngāti Tuawhā are neighbouring hapū. Both hapū have collected pipi (a type of shellfish) from the local pipi bed for as long as anyone can remember, but only Ngāti Tuatoru occupies the whenua adjacent to the pipi bed.

The collection by Ngāti Tuawhā of pipi from the pipi bed is based on an agreement with Ngāti Tuatoru in the early nineteenth century for the mutual collection of kaimoana (seafood) from their respective fishing grounds. Under the agreement, in exchange for collection by Ngāti Tuawhā of pipi from the pipi bed, Ngāti Tuatoru may spear or cast nets for pātiki (flounder) from the harbour bed adjacent to whenua occupied by Ngāti Tuawhā.

It is well known that, when the agreement was reached, a rangatira of Ngāti Tuatoru and a rangatira of Ngāti Tuawhā exchanged words. The rangatira of Ngāti Tuatoru said, “Kei a mātou te mana, kei a koutou ngā pipi” (we retain the mana, and you may have the pipi), and the rangatira of Ngāti Tuawhā responded, “Kei a mātou te mana, kei a koutou ngā pātiki” (we retain the mana, and you may have the pātiki).

The agreement was settled through a tomo (arranged marriage) between a child of each of the rangatira. Further tomo between members of both hapū have since reinforced that agreement.

Now, the local council is required to consult with local hapū regarding the regulation of the pipi bed. Ngāti Tuatoru claims it should be the sole hapū consulted by the local council. Ngāti Tuawhā claims it should also be consulted.

Figure 11: The relationships between the pipi bed, the hapū and the local council

Applying the guide to case study 4

Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following:

(a) The structural concepts of whakapapa and whanaungatanga.

STEP 1: IDENTIFY THE TIKANGA

• 4.71 Ngāti Tuatoru has direct whakapapa to the pipi bed because it was discovered and named by one of their tupuna. While some members of Ngāti Tuawhā also whakapapa to the pipi bed, this is through their Ngāti Tuatoru whakapapa, which was established through the arranged marriages that were entered into to reinforce the agreement between the hapū. Ngāti Tuatoru and Ngāti Tuawhā also whakapapa to each other via those marriages.
• 4.72 Since Ngāti Tuatoru has whakapapa to the pipi bed, Ngāti Tuatoru automatically has a whanaungatanga connection to it. Kaitiakitanga responsibilities derive from that whanaungatanga.
• 4.73 Both Ngāti Tuatoru and Ngāti Tuawhā also have whanaungatanga responsibilities to each other as a result of their whakapapa to each other and the agreement reached by their tūpuna. These responsibilities include showing manaakitanga and aroha towards each other in relation to the pipi bed and honouring the agreement.

The relational concepts of mana, tapu and noa arising from the status of an entity and:

(i) to the extent mana is engaged, its source; and

(ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri.

(ii)

• 4.74 Both Ngāti Tuatoru and Ngāti Tuawhā have mana in relation to the pipi bed, the source of which is mana moana (power or authority relating to part of the sea). However, the basis of the mana moana differs between the two hapū, as reflected in the kōrero between the rangatira of the hapū when the agreement was reached. The mana moana of Ngāti Tuatoru is based in take tupuna (through its direct whakapapa to the pipi bed), while the mana moana of Ngāti Tuawhā is based in take hoko via the agreement (take hoko refers to an exchange). This difference means that, while both hapū have kaitiakitanga responsibilities associated with mana moana, the responsibilities of Ngāti Tuatoru in relation to the pipi bed are greater.
• 4.75 It is also notable that the way the local council approaches consultation could affect the mana moana of one or both hapū. This could have implications for the relationship between Ngāti Tuatoru and Ngāti Tuawhā as well as their relationships and respective mana in relation to other hapū in the area. Both Ngāti Tuatoru and Ngāti Tuawhā will want to ensure that their respective mana is not impacted by the council’s actions.
• 4.76 The pipi bed is tapu to a degree that demands respect, although not to a degree where access must be restricted. This tapu arises in two ways. It arises through the whakapapa of the pipi bed to Hinemoana (an atua associated with the moana and shellfish in particular). It also arises through the whakapapa of Ngāti Tuatoru to the pipi bed. The way the local council regulates collection of pipi will need to give due respect to its tapu. This will be a matter of concern to both Ngāti Tuatoru and Ngāti Tuawhā. Each hapū will want to ensure that the way collection of pipi is regulated respects tapu as part of fulfilling their respective kaitiakitanga responsibilities.
• 4.77 Noa is engaged because Ngāti Tuatoru and Ngāti Tuawhā have been able to collect kaimoana from the pipi bed without state-imposed restriction in accordance with their original agreement. Each hapū will want to ensure that the way the pipi bed is regulated does not impact on their access to the pipi bed in the future.
• 4.78 The way the pipi bed is regulated may have an impact on its mauri. Both hapū will be responsible for maintaining and protecting the mauri of the pipi bed by fulfilling their kaitiakitanga responsibilities and respecting the tapu of the pipi bed.

(c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha.

• 4.79 In this factual situation, the relevant responsibilities arising from whanaungatanga and associated with mana are aroha, manaakitanga and kaitiakitanga:

(a) The hapū have whanaungatanga responsibilities to each other as a result of their whakapapa to each other and the agreement reached by their tūpuna. These responsibilities include showing manaakitanga and aroha towards each other in relation to the pipi bed. For Ngāti Tuatoru, this may mean ensuring Ngāti Tuawhā has

continued access to the pipi bed, and for Ngāti Tuawhā, this may mean care needs to be taken to ensure that the pipi bed is not depleted.

(b) Both hapū also have kaitiakitanga responsibilities in relation to the pipi bed. The kaitiakitanga responsibilities of Ngāti Tuatoru derive from whanaungatanga (due to the direct whakapapa of the hapū to the pipi bed) and are also inherent in its mana moana status based in take tupuna. The kaitiakitanga responsibilities of Ngāti Tuawhā are inherent in its mana moana status based in take hoko. Because the kaitiakitanga responsibilities are generated differently for each hapū, the responsibilities and the way in which they are fulfilled are different — the responsibilities of Ngāti Tuatoru in relation to the pipi bed are greater. Accordingly, Ngāti Tuatoru fulfilling its responsibilities might extend to involvement in management of the pipi bed going forward, while Ngāti Tuawhā fulfilling its responsibilities might be limited to access management.

(d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance.

• 4.80 The take in the context is the local council being required to consult with local hapū and Ngāti Tuatoru and Ngāti Tuawhā having different views about who should be consulted.
• 4.81 Utu and ea have been maintained until now through the agreement between Ngāti Tuatoru and Ngāti Tuawhā and through each hapū fulfilling their responsibilities to the pipi bed and each other. This has enabled a state of balance in relation to the mana moana of each hapū. It has also protected the mauri of the pipi bed and respected its tapu.
• 4.82 One way the hapū might address the take is to agree on how they might fulfil their respective responsibilities to the pipi bed and each other moving forward. This could involve a tikanga process to determine the appropriate utu in order for a state of ea to be achieved. It may be appropriate for a hui to be called by the hapū at which they discuss how they could fulfil their respective responsibilities to the pipi bed and each other. The hapū might agree that:

(a) The responsibilities of Ngāti Tuatoru mean they should be consulted on all matters relating to the regulation of the pipi bed. In being consulted, Ngāti Tuatoru will actively try to ensure Ngāti Tuawhā has continued access to the pipi bed.

(b) The responsibilities of Ngāti Tuawhā mean they should be consulted on matters relating to access to the pipi bed. Ngāti Tuawhā will also continue to take care to ensure the pipi bed is not depleted.

• 4.83 The hapū may wish to invite the local council to the hui so that it has a better understanding of the tikanga in application and interaction in relation to the pipi bed and the hapū.
• 4.84 The hapū may not be able to reach an agreement between each other as to how their responsibilities in relation to the pipi bed and each other can be fulfilled moving forward. Even if an agreement is reached between the hapū, it may not be acted on by the local council. In either of these scenarios, an interface between tikanga and state law may arise.

(e) Any other concepts of tikanga Māori that are engaged.

• 4.85 No other concepts appear to be engaged in this context.

(f) Any tikanga processes or procedures that have been, are, or could be engaged.

• 4.86 The process that has regulated the pipi bed between the hapū until this point has been the agreement entered into by the hapū in the early nineteenth century. The marriage entered into as part of the agreement was a tomo, and subsequent tomo have reinforced the agreement. Arranged marriages of this kind place a heavier obligation on the descendants of those marriages to fulfil the whanaungatanga responsibilities that are also consistent with their mana moana.
• 4.87 Utu may involve hui in order for a state of ea to be achieved.

Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.

STEP 2: IDENTIFY RELEVANT KŌRERO TUKU IHO AND RELATED MĀTAURANGA, INCLUDING, FOR EXAMPLE, WHAKATAUKĪ, WHAKATAUĀKĪ, WAIATA AND MŌTEATEA

• 4.88 Some iwi and hapū trace the whakapapa of shellfish to Hinemoana, a daughter of Hineahuone. Hinemoana personifies water and constantly bites or gnaws Papatūānuku as tides rise and fall, articulated in the whakataukī “Te ngaunga a Hinemoana”.6

(a) Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau.

(b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau.

(c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

STEP 3: IDENTIFY OTHER SIMILAR SITUATIONS

• 4.89 Recently, two hapū of the same iwi as Ngāti Tuatoru and Ngāti Tuawhā entered into a kawenata (covenant) that set out the different areas of their rohe over which they have mana whenua and the basis of that mana whenua. The kawenata also sets out how the hapū wish to engage with the local council should the council be required to consult local hapū in relation to the whenua.

⁶ Hirini Moko Mead and Neil Grove Ngā Pēpeha a ngā Tīpuna (Victoria University Press, 2001) at 383.

• 4.90 Two other iwi of the same waka to which Ngāti Tuatoru and Ngāti Tuawhā affiliate have found a tikanga-led resolution in a similar context. The two iwi have been placed in the same large natural grouping for the purposes of a settlement with the Crown relating to breaches by the Crown of te Tiriti o Waitangi | Treaty of Waitangi. Commercial redress in the settlement includes 40 deferred selection properties that the large natural grouping will have a right to purchase from the Crown for a period after settlement. The iwi have entered into an agreement, separate to the Crown, that sets out which deferred selection properties they should each have a right to purchase under the settlement in accordance with tikanga. If both iwi agree, the large natural grouping will purchase the deferred selection properties from the Crown after settlement and transfer them to the iwi with the greater interest.

CASE STUDY 5: CREATING A WHĀNAU THROUGH SURROGACY

The facts

Rāniera and Matthew are a married male couple who have been together for 15 years when they decide they are ready to start a whānau via surrogacy. Rāniera is of Ngāti Tuarima, and Matthew moved to Aotearoa New Zealand from Scotland when he was three.

Rāniera has a brother who is married to Erana. Erana is of Ngāti Tuaono, and she has agreed to be Rāniera and Matthew’s surrogate. Rāniera and Matthew hope Erana will be able to have two children by surrogacy for them to raise so they (Rāniera and Matthew) can each be a genetic parent of one of the children.

Rāniera and Matthew start looking for an ova donor whose ova will be used with their sperm to create embryos for implantation in Erana via in vitro fertilisation (IVF). Rāniera and Matthew would like the ova donor to be Māori so that the children will share the same whakapapa. Otherwise, only the child whose genetic parent is Rāniera will be Māori with whakapapa to a hapū and iwi.

Rāniera and Matthew meet Anahera through one of Matthew’s work colleagues, and they become close friends. Anahera is of Ngāti Tuawhitu. After Rāniera and Matthew have known Anahera for a year, they mention to her that they are looking for an ova donor, and she immediately offers to help.

Rāniera, Matthew, Erana, her husband and Anahera begin the surrogacy process. It involves getting approval for the surrogacy arrangement from the Ethics Committee on Assisted Reproductive Technology, a committee designated by the Minister of Health. To get approval, Rāniera, Matthew, Erana, her husband and Anahera must meet certain requirements under guidelines applying to surrogacy arrangements involving IVF. This includes a requirement for each individual and the group to have counselling regarding the surrogacy arrangement. The counselling must be “culturally appropriate” and provide for “whānau involvement”.7 A principle of the only legislation that directly addresses surrogacy (the Human Assisted Reproductive Technology Act 2004) also states that “the needs, values and beliefs of Māori should be considered and treated with respect” by all people exercising powers or functions under the legislation.8

The parents of Anahera come with her to both her individual counselling appointment and the group counselling appointment. They want to understand how tikanga will be acknowledged and complied

7. Advisory Committee on Assisted Reproductive Technology Guidelines for family gamete donation, embryo donation, the use of donated eggs with donated sperm and clinic assisted surrogacy (September 2020) at [B(3)].

⁸ Human Assisted Reproductive Technology Act 2004, s 4(f).

with in the surrogacy arrangement. They are also concerned to ensure the future children are born

and raised in a manner consistent with tikanga.

Figure 12: The relationships between the individuals involved in the surrogacy arrangement and their hapū

Applying the guide to case study 5

Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following:

(a) The structural concepts of whakapapa and whanaungatanga.

STEP 1: IDENTIFY THE TIKANGA

• 4.91 One of the future children will whakapapa to Ngāti Tuarima and the whānau of Rāniera through Rāniera. Both children will whakapapa to Ngāti Tuawhitu and the whānau of Anahera through Anahera. Both children may also be considered to whakapapa to Ngāti Tuaono and the whānau of Erana through Erana. This is because Erana will become pregnant, carry and give birth to the children.
• 4.92 Whanaungatanga is already engaged between Matthew, Rāniera and Erana because Erana is Rāniera’s brother’s wife. In agreeing to be Matthew and Rāniera’s surrogate, Erana may be fulfilling her responsibilities arising from whanaungatanga to show aroha

and manaakitanga. In fulfilling these responsibilities, Erana will be helping to ensure the whakapapa of Rāniera continues and that Rāniera and Matthew do not become whare ngaro (lost houses). Whare ngaro is a term alluding to the loss of whakapapa resulting from infertility.

• 4.93 The surrogacy arrangement may generate whanaungatanga between Erana and Anahera because they will both be involved in the creation of a whānau through the surrogacy arrangement.
• 4.94 Whanaungatanga already exists between Matthew, Rāniera and Anahera through their close friendship. Whanaungatanga does not always require direct whakapapa. The whanaungatanga between Matthew, Rāniera and Anahera may also be a reason for Anahera offering to donate her ova for the surrogacy arrangement. Similar to Erana, Anahera may be fulfilling her responsibilities to show aroha and manaakitanga arising from whanaungatanga. Anahera will also be helping to ensure the whakapapa of Rāniera continues and that Rāniera and Matthew do not become whare ngaro.
• 4.95 The surrogacy arrangement will further strengthen whanaungatanga between Matthew, Rāniera, Erana and Anahera. Matthew and Rāniera will have whanaungatanga responsibilities to show Erana and Anahera aroha and manaakitanga due to the surrogacy arrangement.
• 4.96 The surrogacy arrangement will also further strengthen whanaungatanga between the individuals and their respective whānau and hapū, particularly when the children are born. The whānau and perhaps the hapū of each individual will want to be involved in the children’s upbringing in order to fulfil their own responsibilities (to show aroha and manaakitanga) arising from whanaungatanga. Part of fulfilling these responsibilities will include ensuring both children are aware of their whakapapa.
• 4.97 Whanaungatanga is also engaged between Rāniera, Erana, Anahera as individuals and their respective whānau and hapū. Their whānau and hapū could disagree with their involvement in the surrogacy arrangement (perhaps because they consider it is not tika). If this happens, whanaungatanga and a responsibility arising from it to act in accordance with kotahitanga may require the person’s involvement in the surrogacy arrangement to cease.

(b) The relational concepts of mana, tapu and noa arising from the status of an entity and:

(i) to the extent mana is engaged, its source; and

(ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri.

(ii)

• 4.98 The individuals, the whānau and the hapū have mana in relation to the surrogacy arrangement. The mana is sourced differently, so we identify the sources of the mana of the individuals, the whānau and the hapū below:

(a) The sources of the mana of both Anahera and Erana are mana tangata, mana tupuna and mana wāhine.

(b) The sources of the mana of Rāniera are mana tangata and mana tupuna.

(c) The source of the mana of Matthew is mana tangata.

(d) The source of the mana of the whānau and hapū is mana tupuna.

• 4.99 The mana of the individuals, whānau and hapū will be diminished, maintained or enhanced depending on how they fulfil their responsibilities in the surrogacy arrangement. In this context, the responsibilities associated with mana are the same as those arising from whanaungatanga described above. The individuals, whānau and hapū have responsibilities to show aroha and manaakitanga. The individuals also have a responsibility to act in accordance with kotahitanga.
• 4.100 Female reproductive organs and their functions are considered particularly tapu. Anahera will therefore be in a heightened state of tapu during ova donation. Erana will be in a heightened state of tapu during pregnancy and birth.
• 4.101 Noa is relevant to the extent that the tapu of Anahera and Erana might be actively reduced through a process to whakanoa to allow medical treatment in the surrogacy arrangement to occur. The purpose of a process to whakanoa would be to avoid a breach of tapu.
• 4.102 The mauri of Erana and Anahera may be affected due to the general health risks associated with pregnancy (in relation to Erana) and ova donation (in relation to Anahera). The mauri of Erana and Anahera will need to be protected throughout the surrogacy arrangement. Protection will be partially achieved by Matthew and Rāniera fulfilling their responsibilities to show aroha and manaakitanga and by ensuring that the tapu of Erana and Anahera is respected.

(c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha.

• 4.103 In this factual situation, the relevant responsibilities arising from whanaungatanga and associated with mana are aroha, manaakitanga and kotahitanga:

(a) Erana and Anahera are showing aroha and manaakitanga by agreeing to be involved in the surrogacy arrangement.

(b) Matthew and Rāniera will need to show aroha and manaakitanga towards Erana and Anahera, their whānau and their hapū during the surrogacy arrangement.

(c) The whānau and hapū will want to show aroha and manaakitanga to all involved, particularly the future children.

(d) If the surrogacy arrangement is not considered tika by the respective whānau and hapū of the individuals, they may be required to cease their involvement in the surrogacy arrangement in accordance with kotahitanga.

(d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance.

• 4.104 The take in this context is Anahera agreeing to donate her ova and Erana agreeing to become pregnant, carry and give birth to children Matthew and Rāniera will raise.
• 4.105 The appropriate utu in this context will be, at a minimum, ensuring each person, whānau and hapū can fulfil their responsibilities arising from whanaungatanga and associated with mana. More may be required for a state of ea to be achieved. For example, the whānau

of Rāniera and his hapū may wish to give a koha to Erana and Anahera, their whānau and/or their hapū to recognise their involvement in the surrogacy arrangement.

(e) Any other concepts of tikanga Māori that are engaged.

• 4.106 Tika may be engaged in this context. This is about whether the surrogacy arrangement is considered to be ethically and culturally right. Views may differ among the whānau and hapū about whether the surrogacy arrangement is tika.
• 4.107 Whakamā (shame) could also be engaged in this context. If the responsibilities engaged in this factual situation are not fulfilled, utu will not have been appropriate and so a state of ea will not be achieved. This could place some or all of the individuals, their whānau and the hapū in a state of whakamā.

(f) Any tikanga `processes or procedures that have been, are, or could be engaged.

• 4.108 If Matthew and Rāniera do not have children, they will become whare ngaro. As earlier explained, the term literally translates to lost houses and alludes to infertility resulting in the loss of whakapapa.
• 4.109 Some may consider the surrogacy arrangement is similar to a whāngai (customary adoption) or atawhai (caregiving) arrangement, where a child is given to others to raise for a variety of reasons, including infertility.
• 4.110 There could be karakia (ritual prayers) during medical treatment in the surrogacy arrangement, to whakanoa Anahera and Erana for limited periods to avoid breaches of tapu relating to their reproductive organs and functions.
• 4.111 An individual, whānau or hapū may wish to give koha to recognise the contribution of Anahera and Erana to the surrogacy arrangement if it is considered an appropriate utu for a status of ea to be achieved.
• 4.112 There are many tikanga associated with childbirth. For example, the whenua (placenta) and pito (umbilical cord) of Māori children are often returned to the land to which they are connected through whakapapa, and sometimes tohi (ritual ceremonies) are conducted after birth. The whānau may need to consider where the whenua and pito of the children born as a result of the surrogacy arrangement are returned to as well as whether there should be a tohi.

Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.

STEP 2: IDENTIFY RELEVANT KŌRERO TUKU IHO AND RELATED MĀTAURANGA, INCLUDING, FOR EXAMPLE, WHAKATAUKĪ, WHAKATAUĀKĪ, WAIATA AND MŌTEATEA

• 4.113 The creation narrative of Te Kore, Te Pō and Te Ao Mārama is a metaphor for the birth process and emphasises the importance of women and their ability to give birth.9
• 4.114 Maternal figures feature prominently in kōrero tuku iho in the whakapapa of humanity. It is widely accepted by Māori that the first human, a woman named Hinetītama, was created by the children of Papatūānuku and Ranginui with the assistance of Papatūānuku, who provided the uha (female element).
• 4.115 There are numerous examples of whakataukī that indicate the significance of women and their ability to give birth. “He wahine, he whenua, e ngaro ai te tangata”, for instance, can be translated to mean that, without women to guarantee progeny and land, the people will perish.10

(a) Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau.

(b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau.

(c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

STEP 3: IDENTIFY OTHER SIMILAR SITUATIONS

• 4.116 The parents of Anahera are not aware of any situations in Ngāti Tuawhitu where a person has donated their ova for the purposes of a surrogacy arrangement. However, they do remember being told about a situation in the late 1800s where a tupuna of Ngāti Tuawhitu was unable to bear children of her own. Her husband, who was from a different hapū, had natural intercourse with other women and the tupuna raised the children. The children were considered to be descendants of Ngāti Tuawhitu by whakapapa, even though they did not have a genetic connection to the hapū.
• 4.117 Rāniera is the first person from his iwi to enter into a surrogacy arrangement as far as he is aware. He has spoken to his kuia about the proposed surrogacy arrangement, and she has told him that it sounds very similar to a whāngai arrangement. She herself is a whāngai and was raised by her grandmother. The kuia of Rāniera does not see any issue with the surrogacy arrangement in tikanga. In other words, she considers it to be tika. In her view, the most important thing is the children and ensuring that they know their whakapapa.
• 4.118 Another hapū from the same iwi as the hapū of Erana was recently involved in a surrogacy arrangement that occurred after a male couple posted online looking for a Māori ova donor. A donor from the hapū volunteered, and the hapū supported the surrogacy arrangement. There were 40 other potential Māori donors who responded to the post offering to help.

⁹ The creation narrative of Te Kore, Te Pō and Te Ao Mārama is described in Chapter 2.

10. Rangimarie Rose Pere Ako Concepts and Learning in the Māori Tradition (Te Kohanga Reo National Trust Board, Wellington, 1994) at 20.

CASE STUDY 6: A RĀHUI AND AN ASSAULT

The facts

A man and his two children drown while holidaying at a small beachside town. A rāhui (a process that formally restricts access to an area for a certain period) is placed on the beach by the local hapū, Ngāti Tuawaru. The rāhui extends to the local boat ramp and will be in place for at least three weeks as the search continues for the man’s body.

The rāhui frustrates local commercial fishing companies whose businesses will be affected by not being able to launch their vessels. The nearest boat ramp where they can launch is over two hours’ drive away. The crew of one commercial fishing vessel are drinking at a local pub when they make plans to launch their boat the next day despite the rāhui.

Matiu and Hōhepa are twins from Ngāti Tuawaru. They have grown up in the town and are closely connected to their hapū and marae. Their best friend Tim is not Māori but has grown up with Matiu and Hōhepa. Tim is considered a member of the whānau of Matiu and Hōhepa and attends hui at the marae, tangihanga and other hapū events.

Matiu, Hōhepa and Tim are at the local pub when they overhear the crew of the commercial fishing vessel planning to launch their boat the next day. The friends decide to go to the local boat ramp to try to stop them. At the boat ramp, a discussion escalates, and Matiu and Tim punch two of the crew. The crew are shaken but not otherwise physically injured. Matiu and Tim are charged and convicted of common assault.

Figure 13: The relationships between the hapū responsible for the rāhui, the individuals involved in the assault and the commercial fishers

Applying the guide to case study 6

Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following:

(a) The structural concepts of whakapapa and whanaungatanga.

STEP 1: IDENTIFY THE TIKANGA

• 4.119 Matiu and Hōhepa whakapapa to Ngāti Tuawaru. Ngāti Tuawaru also whakapapa to the beach on which the rāhui has been placed. This is because the beach was discovered and named by a tupuna of the hapū.
• 4.120 Whanaungatanga is engaged between Matiu and Hōhepa and Ngāti Tuawaru because of their whakapapa to Ngāti Tuawaru. Whanaungatanga is engaged between Matiu, Hōhepa and Tim because of their close friendship. Whanaungatanga is engaged between Tim and Ngāti Tuawaru because of Tim’s long association with the hapū. The whanaungatanga between Matiu, Hōhepa, Tim and Ngāti Tuawaru generates responsibilities between the three men and the hapū to show manaakitanga and act in accordance with kotahitanga.
• 4.121 Whanaungatanga is also engaged between Ngāti Tuawaru and the beach on which the rāhui has been placed because of the whakapapa of the hapū to the beach. The whanaungatanga between Ngāti Tuawaru and the beach generates kaitiakitanga responsibilities. Ngāti Tuawaru was fulfilling these responsibilities by placing the rāhui on the beach.

(b) The relational concepts of mana, tapu and noa arising from the status of an entity and:

(i) to the extent mana is engaged, its source; and

(ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri.

(ii)

• 4.122 Matiu, Hōhepa and Tim each have mana. The sources of mana of Matiu and Hōhepa are mana tangata and mana tupuna. The source of Tim’s mana is mana tangata.
• 4.123 Ngāti Tuawaru also has mana. The source of the mana of the hapū is mana tupuna and mana moana based in take tupuna. That is because the hapū has whakapapa to the beach.
• 4.124 The mana of the three men and the hapū will be diminished, maintained or enhanced depending on how they fulfil their responsibilities. In this factual situation the responsibilities associated with the mana of the three men and the hapū are the same as the whanaungatanga responsibilities described above. The three men and Ngāti Tuawaru have responsibilities to show manaakitanga and act in accordance with kotahitanga. Ngāti Tuawaru has kaitiakitanga responsibilities in relation to the beach.
• 4.125 The commercial fishers also have mana. Similar to Tim, the source of each of their mana is mana tangata. The mana of the commercial fishers will be diminished, maintained or enhanced depending on how they fulfil responsibilities consistent with their mana. In this factual situation, the mana of the commercial fishers will be affected by their performance of associated responsibilities, such as showing manaakitanga by respecting the rāhui.
• 4.126 The beach over which the rāhui has been placed is extremely tapu because of the deaths that have occurred there.
• 4.127 By punching the commercial fishers, Matiu and Tim have breached the inherent tapu of the commercial fishers.
• 4.128 Noa is not strongly engaged. However, when the rāhui is lifted this will occur through a process of whakanoa. The whakanoa process will reduce the potency of the tapu and enable people to access the beach without restriction.
• 4.129 Mauri is not strongly engaged, although each individual and the beach has a mauri that may have been affected by these events. Had the commercial fishers managed to launch their vessel in breach of the rāhui, they may have further impacted the mauri of the beach by disrespecting its tapu.

(c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha.

• 4.130 In this factual situation, the relevant responsibilities arising from whanaungatanga and associated with mana are manaakitanga, kotahitanga and kaitiakitanga:

(a) The three men and Ngāti Tuawaru have responsibilities to show manaakitanga and act in accordance with kotahitanga.

(b) Ngāti Tuawaru has kaitiakitanga responsibilities in relation to the beach. This responsibility has been recognised by Ngāti Tuawaru by placing the rāhui on the beach.

(c) The commercial fishers have a responsibility to show manaakitanga in relation to the rāhui.

(d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance.

• 4.131 There are multiple take in this factual situation:

(a) While the three men were trying to show manaakitanga for Ngāti Tuawaru and the rāhui by seeking to get the commercial fishers to respect the restriction, they did not do so with hapū support. In fact, they acted unilaterally, which means they did not fulfil their responsibility to act in accordance with kotahitanga. They also violated the inherent tapu of the commercial fishers.

(b) By attempting to launch their vessel, the commercial fishers failed to respect the rāhui. In doing so, they did not fulfil their responsibility to show manaakitanga in relation to the rāhui. The failure to fulfil this responsibility is significant because of the level of tapu relating to the rāhui.

• 4.132 The take have diminished the mana of the three men, Ngāti Tuawaru and the commercial fishers. For a state of ea to be achieved, utu is required to remedy the parties’ respective failures to live up to their responsibilities. One way to achieve a state of ea is for Ngāti Tuawaru to call a hui so that all involved can agree to an appropriate utu. In taking this approach, Ngāti Tuawaru would be fulfilling its own responsibility to show manaakitanga to the three men. The responsibility arises from whanaungatanga and relates to the mana of the hapū.
• 4.133 If an appropriate utu can be agreed at a hui, the mana of the three men, the hapū and the commercial fishers could be restored. Utu may involve apologies being made in kōrero, the gifting of koha in the form of taonga or the offering of a service such as collecting rubbish from the beach over which the rāhui has been placed. If the commercial fishers chose not to attend the hui, that would not prevent the mana of the three men and the hapū being restored or a state of ea being achieved. It would simply result in the mana of the commercial fishers remaining diminished.

(e) Any other concepts of tikanga Māori that are engaged.

• 4.134 No other concepts appear to be engaged in this context.

(f) Any tikanga processes or procedures that have been, are, or could be engaged.

• 4.135 A rāhui is a process that formally restricts access to an area for a certain period. There are different causes for rāhui, one of which is the protection of natural resources. Where a rāhui is caused by death, as it is in this context, the rāhui recognises the tapu state of an area brought about by the death or deaths that have occurred.
• 4.136 Utu may involve hui, kōrero and the gifting of koha for a state of ea to be achieved.

Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.

STEP 2: IDENTIFY RELEVANT KŌRERO TUKU IHO AND RELATED MĀTAURANGA, INCLUDING, FOR EXAMPLE, WHAKATAUKĪ, WHAKATAUĀKĪ, WAIATA AND MŌTEATEA

• 4.137 Rāhui are a long-established practice, set in place to recognise or place an area in a state of tapu. Rāhui do not appear to be associated with a particular atua, nor have we been able to identify other mātauranga relating specifically to rāhui.

Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau.

(b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau.

(c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

STEP 3: IDENTIFY OTHER SIMILAR SITUATIONS

• 4.138 It is standard practice for Ngāti Tuawaru to place rāhui on areas where death has occurred to recognise tapu. One example is in relation to a river that connects to the beach where the most recent drownings have occurred. Forty years ago, a whānau from Ngāti Tuawaru drowned in the river while netting for tuna (eels). The hapū placed a rāhui on that part of the river. The rāhui is yet to be lifted so no one swims in that part of the river anymore. Ngāti Tuawaru also refrain from collecting kaimoana or water from any part of the river.

Part Two

Interaction between tikanga and state law

134 STUDY PAPER 24 – HE POUTAMA TE AKA MATUA O TE TURE | LAW COMMISSION

I think that there is a key distinction between law in the colonial period and that of the post-1970s modern period. It is this: where tikanga Māori was recognised during the colonial period, it was recognised only to the extent necessary to succeed in extinguishing it ... The recognition of custom in the modern era is different. It is intended to be permanent and, admittedly within the broad confines of the status quo, transformative.

Justice Joseph Williams1

1. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 12. We acknowledge that not everyone regards the modern shift as “transformative”: see for example Moana Jackson “Changing realities: unchanging truths” (1994) 10 Australian Journal of Law and Society 115 at 116; Ani Mikaere Colonising Myths — Māori Realities | He Rukuruku Whakaaro (Huia Publishers, Wellington, 2011); Carwyn Jones New Treaty New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 42–50.

CHAPTER 5

Tikanga and the common law

INTRODUCTION

• 5.1 In this part, we provide an overview of the historical foundations of engagement and continuing engagement between tikanga and state law. The part shows the impact that tikanga has already had on state law and lays a foundation for Part Three in which we discuss strategies for their future engagement. Chapter 5 and Chapter 6 take a high-level historical overview of legal interactions between tikanga and the two main sources of state law — common law and statute. Chapter 7 considers specific areas of state law in more depth, describing how lawmakers in areas such as environmental law, criminal law and family law are currently engaging with tikanga.
• 5.2 In the present chapter, we begin by examining how the common law has engaged with tikanga. Modern cases have brought the relationship between tikanga and the common law into focus.1 While these decisions mark significant developments, the relationship between tikanga and the common law has developed over nearly two centuries. As judges begin to grapple with tikanga, understanding where we are and how we got here assumes importance.
• 5.3 We first discuss the engagement between tikanga and the common law through the customary law doctrine. We then examine modern authorities, beginning with Takamore v Clarke,2 that move beyond the application of customary law doctrines to engage with tikanga in new ways.

EARLY DEVELOPMENTS: TIKANGA AS CUSTOMARY LAW

• 5.4 The English common law brought with it doctrines concerning the recognition of “local custom”, and it was through that lens that state law first interacted with indigenous law in Aotearoa New Zealand. We highlight two preliminary points. First, many of the older authorities use “local custom”, “customary law” or “indigenous customary law” to refer to tikanga itself. We do not consider that custom and tikanga are synonymous and we have not used them as such in this paper. When we use the terms “customary law” or

1. See Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733; Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801; Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239; Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142.

² Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.

“tikanga as custom” we are intending to refer only to common law recognition of tikanga and not to tikanga itself. Second, the common law has always contained doctrines to facilitate the recognition of local customs as part of the common law.3 The common law extended this recognition of custom to the custom of indigenous peoples in British colonies unless and until altered by legislation.4 Thus, extending recognition to tikanga through these doctrines was not novel from the common law’s perspective.

• 5.5 Two important, interrelated legal doctrines were brought with English common law to the new colony of Aotearoa New Zealand that shaped early engagement with tikanga:

(a) The doctrine of continuity recognised some pre-existing customs of indigenous inhabitants as having legal effect as customary law, despite the acquisition of British sovereignty.5 Indigenous custom was not recognised by the common law without meeting a threshold test that required the custom to have existed from time immemorial, to have continued as of right and without interruption since its origin, to be reasonable, and to not have been extinguished by statute.6 The doctrine of continuity was reflected in Aotearoa New Zealand by the English Laws Act 1858, which provided for the laws of England to apply in Aotearoa New Zealand “so far as applicable to the circumstances of the said Colony of New Zealand”.7

(b) The doctrine of native title considered the radical title acquired by the colonising power — in this case, the British Crown — to be subject to existing native rights.8 Those native rights cannot be extinguished otherwise than by the free consent of the native occupiers — and then only to the Crown and in strict compliance with the provisions of any relevant statutes.9

• 5.6 The two doctrines are interrelated because the first defines the content of any native rights or title asserted under the second.10 As Elias CJ was later to explain in Attorney- General v Ngati Apa, any property interest of the Crown in land over which it has acquired

3. The foundational case for these requirements is The Case of Tanistry (1608) Dav Ir 28, 80 ER 516 (KB) at 32; see also Sir William Blackstone Commentaries on the Laws of England (1765–9) (University of Chicago Press, London, 1979) vol 1 at 63: “[t]he lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called, but also the particular customs of certain parts of the kingdom; and likewise, those particular laws that are by custom observed only in certain courts and jurisdictions”. Some parts of the common law in England evolved out of customary practices that were particular to various localities to become customary law common to the realm. See Brian Z Tamanaha A General Jurisprudence of Law and Society (Oxford University Press, Oxford, 2001) at 5; Alan Cromartie “The idea of common law as custom” in Amanda Perreau Saussine and James Bernard Murphy (eds) The Nature of Customary Law (Cambridge University Press, Cambridge, 2007) 203 at 222; AWB Simpson “The common law and legal theory” in AWB Simpson (ed) Legal Theory and Legal History: Essays on the Common Law (A&C Black, London, 1987) 359 at 373; and P J Fitzgerald Salmond on Jurisprudence (12th ed, Sweet & Maxwell Ltd, London, 1966) at 189.

⁴ Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at fn 43.

5. Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [112] citing P G McHugh The Aboriginal Rights of the New Zealand Maori at Common Law (PhD Thesis, University of Cambridge, 1987) at 149–150 and 184.

⁶ Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [109].

7. English Laws Act 1858, s 1. See also Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 11, citing Douglas Lambert “Van Der Peet and Delgamuukw: ten unresolved issues” (1998) 32 University of British Columbia Law Review 249 at 261.
8. Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1993] NZCA 218; [1994] 2 NZLR 20 (CA) at 23–24 per Cooke P for the Court.
9. R v Symonds (1847) NZPCC 387 at 390 per Chapman J, in a passage later expressly adopted by the Privy Council in a judgment delivered by Lord Davey: Nireaha Tamaki v Baker (1901) NZPCC 371 at 384.

¹⁰ Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [120] per Glazebrooke and Wild JJ.

sovereignty depends upon any pre-existing customary interest and its nature, which is a question of fact:11

The content of such customary interest is a question fact discoverable, if necessary, by evidence ... As a matter of custom the burden on the Crown’s radical title might be limited to use or occupation rights held as a matter of custom ...

• 5.7 Initially, these two doctrines shaped two lines of case law through which the foundations of the doctrines in Aotearoa New Zealand were tested. We have therefore structured our discussion around:

(a) property rights cases that addressed rights and title in land, as founded in indigenous customary law; and

(b) “general custom” cases (that is, those not concerned with property) that addressed whether tikanga could be given effect to by the common law by meeting the criteria of a customary law recognition test.

PROPERTY RIGHTS

• 5.8 Before discussing how the courts have treated Māori customary property rights in state law, we observe that transforming tikanga-based relational rights and interests in whenua into alienable property rights and interests departs from the fundamental nature of that relationship in tikanga, which is based on whakapapa (connections) and whanaungatanga (kinship in an extended sense). Recognition in the form of alienable property rights or interests, while affirming rights to land in the common law, could thus not have been a direct application or recognition of tikanga.12 Case law identifies this important difference, noting that tikanga-based interests should not be conflated with and do not require proof of proprietorship in an English law sense.13
• 5.9 The courts’ modern treatment of Māori customary property rights is different to treatment in the colonial period, although there has not been a linear progression from rejection to acceptance. The cases demonstrate significant variations in approach. We have identified three broad themes in the authorities: outright rejection, acknowledgment without enforcement, and recognition. We discuss each of these themes below, then outline the modern approach as seen in Ngati Apa and Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board.

Rejection of proprietary rights

• 5.10 As is well known, the Court in Wi Parata v Bishop of Wellington in 1878 found that Māori were “without any kind of civil government, or any settled system of law”.14 The Court described te Tiriti o Waitangi | Treaty of Waitangi (the Treaty) as a “simple nullity” and dismissed the reference in the Native Rights Act 1865 to “the Ancient Custom and Usage

¹¹ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [31].

12. Anthropologists and prominent writers have argued that not all land was held communally and that Māori recognised concepts of private ownership. See Richard Boast “Māori land boards: experts at being defendants 1900–1950” [2021] OtaLawRw 4; (2021) 17 Otago Law Review 83 at 84; Te Maire Tau “Property rights in Kaiapoi” (2016) 47 Victoria University of Wellington Law Review 677.

¹³ Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [129]–[130]; Re Reeder [2021] NZHC 2726

at [24]–[27].

¹⁴ Wi Parata v Bishop of Wellington (1878) 3 NZ Jur (NS) SC 72 at 77.

of the Maori people”, saying that “a phrase in a statute cannot call what is non-existent into being”.15 The Court also said that the Crown was the “sole arbiter” of its own justice as it relates to customary rights.16

• 5.11 The Privy Council expressly rejected the idea there could be no such thing as customary rights to land in Nireaha Tamaki v Baker in 1901.17 However, the influence of Wi Parata can be found deep into the twentieth century. An example is the 1963 decision in the Ninety Mile Beach case, where Wi Parata was cited for the proposition that it was for the Crown to determine the nature and incidents of any title it would confer and that “it must be the sole arbiter of its own justice”.18

Acknowledgement but not enforcement

• 5.12 Although Wi Parata had a powerful influence on the overall direction of the law as it related to customary property rights and interests, it was not universally applied. Some decisions did acknowledge the existence of customary interests in land based on tikanga, but then refused or failed to give effect to them. In Mangakahia v New Zealand Timber Co, Gilles J did not accept that the Treaty was a simple nullity and acknowledged the existence of customary interests in land. However, he found that they were not enforceable rights in the ordinary courts, saying:19

One of the attributes or incidents of land in fee simple under English law is that the owner being out of possession may by entry obtain a constructive trust possession as to entitle him by virtue of his freehold title to sue as a trespasser. No attribute or incident can be held to attach to an ownership according to native custom.

• 5.13 In other cases, courts deferred to the Crown to recognise customary interests or found that they did not survive the operation of other common law norms or statutes.20 For example, in Re the Bed of the Wanganui River Te Kōti Pīra | Court of Appeal (the Court of Appeal) rejected the idea that there could be ownership of the riverbed separate from ownership of the lands adjacent to the same bed, relying on factual findings of Te Kooti Pīra Māori | Māori Appellate Court (the Māori Appellate Court) about customary relationships to riverbeds. On that basis, the Court said that any interest to the riverbed was alienated when the title to the adjacent lands was alienated. This also meant that the ad medium filum rule (the common law presumption of riparian ownership to the middle of the flowing water) applied to exclude any adverse customary interests.21 Similarly, in Ninety Mile Beach, a claim to the foreshore failed because of the extinguishing effect of section 147 of the Harbours Act 1878.22

¹⁵ Wi Parata v Bishop of Wellington (1878) 3 NZ Jur (NS) SC 72 at 79. See also the Native Rights Act 1865, s 3.

¹⁶ Wi Parata v Bishop of Wellington (1878) 3 NZ Jur (NS) SC 72 at 78.

¹⁷ Nireaha Tamaki v Baker [1901] UKLawRpAC 18; [1901] AC 561 (PC) at 577. See the reasoning in Re Wanganui River Packet License to Stuart

[1903] NZGazLawRp 87; [1903] 23 NZLR 510 (SC) at 514 and Re the Ninety Mile Beach [1963] NZLR 461 (CA) at 476 for examples.

¹⁸ Re the Ninety Mile Beach [1963] NZLR 461 (CA) at 476.

¹⁹ Mangakahia v New Zealand Timber Co (1884) 2 NZLR 345 (SC) at 350.

20. See for example Re the Ninety Mile Beach [1963] NZLR 461 (CA); Waipapakura v Hempton [1914] NZGazLawRp 141; (1914) 33 NZLR 1065 (SC) at 1071–1072; Hohepa Wi Neera v Bishop of Wellington (1902) 21 NZLR 655 (CA); Inspector of Fisheries v Ihaia Weepu [1956] NZLR 920 (HC).
21. Re the Bed of the Wanganui River [1962] NZLR 600 (CA) at 609 per Gresson J, 616–617 per Cleary J and 624 per Turner J.

²² Re the Ninety Mile Beach [1963] NZLR 461 (CA).

Recognition of customary proprietary rights

• 5.14 R v Symonds, which predated Wi Parata, is a case that indicated early acceptance of custom as giving rise to property rights and interests.23 In that case, which involved a dispute between two British settlers over the validity of a Crown grant, Chapman J observed:24

Whatever may be the opinion of jurists as to the strength or weakness of the Native title, whatsoever may have been the past vague notions of the Natives of this country, whatever may be their present clearer and still growing conception of their own dominion over land, it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers.

• 5.15 In Tamihana Korokai v Solicitor-General, the full Court of Appeal recognised the existence of customary rights to a lake bed and their enforceability in the Native Land Court. The Court held that Native Land Court applicants were entitled to have their title investigated unless it was shown the title had been extinguished by statute, cession or Crown grant. 25
• 5.16 The prior existence of customary property rights in respect of riverbeds and the foreshore was also confirmed by the Court of Appeal in the first Wanganui River case and the Ninety Mile Beach case respectively.26 While the Court of Appeal ultimately found the respective rights had not survived alienation of adjacent lands or statutory extinguishment, it did not doubt the prior existence of customary property rights to riverbeds and to the foreshore.

Modern approach: Ngati Apa and Trans-Tasman Resources

• 5.17 The now-settled approach in state law to customary property interests is that they are enforceable in the ordinary courts unless expressly extinguished by statute.27
• 5.18 In the 2003 Ngati Apa case, which concerned Māori customary interests in the foreshore and seabed, the Court of Appeal found that Te Kooti Whenua Māori | Māori Land Court could inquire into whether certain land below the high-water mark is Māori customary land. Elias CJ stated that:28

23. R v Symonds [1840– 1932] NZPCC 387 (SC); see also Shaunnagh Dorsett Juridical Encounters: Māori and the Colonial Courts 1840–1852 (University of Auckland Press, Auckland, 2017) at 50–69, 85, 90 and 155. The Symonds line of authority has been interpreted differently by some prominent writers, with emphasis placed on the fact that non-Māori were the beneficiaries of the application of customary interests. See Sarah Down and David V Williams “Building the foundations of tikanga jurisprudence” (2022) 29 Canterbury Law Review 27.

²⁴ R v Symonds [1840– 1932] NZPCC 387 (PC) at 390.

25. Tamihana Korokai v Solicitor-General [1912] NZGazLawRp 230; (1912) 32 NZLR 321 (CA) at 345 per Stout CJ, at 349–350 per Edwards J, 351 per Williams J and 356 per Chapman J.
26. See Re the Bed of the Wanganui River [1955] NZLR 419 (CA) at 461 per North J who observed that, prior to the Treaty of Waitangi, the bed of the river would have been tribal property. In the same case at 427–433, Cooke J found the following factors influential in determining the claimants held the bed of the Wanganui river under their customs and usages as at 1840: the river was in the boundaries of the Wanganui iwi; the river was an integral part of the community life of the iwi; fishing weirs were attached to the bed of the river and the evidence illustrated that the river was a highway

for the iwi. In Re the Ninety Mile Beach [1963] NZLR 461 (CA) at 467, Gresson J affirmed that the foreshore of the Ninety Mile Beach had immediately before the Treaty been part of the territory in respect of which the two appellate iwi exercised exclusive dominion and control and therefore deemed to own and occupy those lands.

27. Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [32]–[33]; Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277.

²⁸ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [49].

Maori custom and usage recognising property in foreshore and seabed lands displaces any English Crown prerogative and is effective as a matter of New Zealand law, unless such property interests have been lawfully extinguished.

• 5.19 Tipping J said that “Maori customary law is an ingredient of the common law of New Zealand”.29 In respect of the customary title, he said:30

... Maori customary title was, as I have already discussed, not a matter of grace and favour but of common law. Having become part of the common law of New Zealand, it could not be ignored by the Crown unless and until Parliament had clearly extinguished it, and then only subject to whatever might have been put in its place.

• 5.20 In Paki v Attorney-General in 2012, Te Kōti Mana Nui | Supreme Court (the Supreme Court) affirmed the Ngati Apa reasoning in the context of customary property interests in the Waikato River. Following Ngati Apa, Elias CJ held that “application of the common law presumption of riparian ownership to the middle of the flow could not arise until Maori customary interests were excluded”.31 Māori customary interests in the riverbed therefore displaced the common law presumption of riparian ownership to the middle of the riverbed.
• 5.21 In 2021 the Supreme Court in Trans-Tasman Resources unanimously held that a statutory reference in the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act) to “existing interests” in the coastal marine area included tikanga- based interests that had been claimed but not yet granted by the courts under the Marine and Coastal Area (Takutai Moana) Act 2011 (Takutai Moana Act).32 The Court concluded that tikanga will be “applicable law” under the EEZ Act where its recognition and application is appropriate to the particular circumstances of the consent application at hand.33 The Court also held that “tikanga-based customary rights and interests” were existing interests under relevant legislation.34
• 5.22 The Court of Appeal had held that it was:35

... axiomatic that the tikanga Māori that defines and governs the interests of tangata whenua in the taonga protected by the Treaty is an integral strand of the common law of New Zealand.

• 5.23 Importantly, the Court explained that the continued existence of customary property rights necessarily implies the continued existence and operation of tikanga defining their nature and extent.36 The Supreme Court agreed with the Court of Appeal that the Takutai

²⁹ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [185].

³⁰ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [208].

³¹ Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277 at [18].

32. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [149] per William Young and France JJ, [237] per Glazebrook J, [296] per Williams J and [332] per Winkelmann CJ.
33. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [169] per William Young and France JJ, [237] per Glazebrook J, [296]–[297] per Williams J and [332] per Winkelmann CJ.
34. Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, s 59(2)(a). See Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [8] and [154]–[155] per William Young and France JJ, [237] per Glazebrook J, [296]–[297] per Williams J and [332] per Winkelmann CJ.

³⁵ Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZCA 86, [2020] NZRMA 248 at [177].

36. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZCA 86, [2020] NZRMA 248 at [177], citing the same observation made by Tipping J in Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) in relation to tikanga of customary land.

Moana Act was not the source of customary interests but rather the mechanism for their recognition.37 The rights claimed under the Takutai Moana Act were “existing interests”.38

• 5.24 In addressing the status of tikanga, France and Young JJ observed that tikanga has been “treated as norms influencing the development of the common law”.39 Their Honours added that “tikanga Māori is a body of customs and practices, part of which is properly described as custom law” and that “tikanga as law” is a subset of the customary values and practices referred to in the EEZ Act. On that reasoning, it followed that tikanga was “applicable law”.40 In a footnote, France and Young JJ left open the question of whether tikanga is a separate or third source of law and whether there should be any change to the threshold tests set out in Public Trustee v Loasby (discussed below).41 They also gave an illustration of how tikanga might be engaged under the EEZ Act. They said that the decision maker would look at the tikanga itself and consider what it might say about the rights or interests of customary “owners” or of the resource itself. For instance, if the tikanga emphasises mauri, consideration of environmental effects (as required by the EEZ Act) would extend beyond physical effects.42
• 5.25 Williams J agreed with France and Young JJ’s reasoning as to the relevance of tikanga. However, he added that what is meant by “existing interests” and “other applicable law” “must not only be viewed through a Pākehā lens”, commenting:43

As the Court of Appeal rightly pointed out, the interests of iwi with mana moana in the consent area are the longest-standing human related interests in that place. As with all interests, they reflect the relevant values of the interest-holder. Those values — mana, whanaungatanga and kaitiakitanga — are relational. They are also principles of law that predate the arrival of the common law in 1840.

• 5.26 The judgments of the Court of Appeal and the Supreme Court in Trans-Tasman Resources recognised tikanga both as a strand of the common law and as “law” in its own right. In order to do this, the courts built on existing and established common law principles grounded in the presumption of continuity. This exemplifies the common law method in action.

GENERAL CUSTOM

• 5.27 The category we describe as “general custom” captures all customs that are not concerned with interests or rights in property. In the 1908 case of Public Trustee v

37. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [154] per France and William Young JJ.
38. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [154] per France and William Young JJ referring to Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.
39. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [168] per France and William Young JJ.
40. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [171] per France and William Young JJ.

⁴¹ Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at fn 282.

⁴² Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [172].

⁴³ Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [297].

Loasby,44 the Court considered that a custom could give rise to enforceable rights in the courts if it satisfied the criteria that:45

(a) the custom existed as a general custom;

(b) it is not contrary to statute; and

(c) it is reasonable, taking the whole of the circumstances into account.

• 5.28 In Loasby, the Court considered whether the costs of the tangi of rangatira Mahupuku should be paid by the Public Trustee. The Court found that tangi were a well-established custom, saying:46

... it is no objection to a custom founded, as this is, on immemorial usage that it is not comfortable to the common law of the land, for it is of the very essence of the custom that it should vary from it.

• 5.29 In this respect, the Loasby decision may be contrasted with the earlier 1888 case of Rira Peti v Ngaraihi Te Paku, in which Prendergast CJ had refused to recognise Māori customary marriage and therefore entertain the plaintiff’s interest in the deceased’s estate unless they were recognised by law. He said:47

The natives are British subjects, their relations to each other are governed by the laws of the land, and not by their usages, unless, and only so far as these laws have provided for their recognition of their usages.

• 5.30 Subsequent to Loasby, general customs were also recognised by the Privy Council in the 1919 case of Hineita Rirerire Arani v Public Trustee of New Zealand.48 The case concerned the customary adoption of a non-Māori child by Māori and whether the child could succeed to Māori land interests that were otherwise inalienable to non-Māori under the relevant native lands legislation.49 The Privy Council recognised the right of Māori to adopt both according to their customs and according to the relevant legislation, saying:50

It would, therefore, appear that a Maori has the same rights of availing himself of the Adoption of Children Act as a person of European descent ... The right of the Maori to adopt according to his own custom is not interfered with by giving him a further right to adopt in the form and under the conditions provided by the Act.

• 5.31 The Privy Council also recognised Māori authority to modify their own customs, saying that Māori “as a race may have some internal power of self-government enabling the tribe or tribes by common consent to modify their customs”.51
• 5.32 The criteria set out in Loasby for recognition of general custom were endorsed nearly 80 years later by Te Kōti Matua | High Court (the High Court) in Huakina Development Trust v Waikato Valley Authority.52 In that case, the High Court held that “customs and practices that include spiritual elements are cognisable in a court of law provided they are properly

⁴⁴ Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC).

⁴⁵ Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC) at 806.

⁴⁶ Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC) at 806.

⁴⁷ Rira Peti v Ngaraihi Te Paku [1888] 7 NZLR 235 (HC) at 239.

⁴⁸ Hineiti Hirerire Arani v Public Trustee of New Zealand (1919) NZPCC 1 (PC).

⁴⁹ Hineiti Hirerire Arani v Public Trustee of New Zealand (1919) NZPCC 1 (PC) at 1–2.

⁵⁰ Hineiti Hirerire Arani v Public Trustee of New Zealand (1919) NZPCC 1 (PC) at 4.

⁵¹ Hineiti Hirerire Arani v Public Trustee of New Zealand (1919) NZPCC 1 (PC) at 5.

⁵² Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC).

established, usually by evidence”.53 In the 2004 case of Proprietors of Parininihi Ki Waitotara Block v Ngaruahine Iwi Authority, the High Court held that Loasby stated the criteria that Māori custom must meet to be part of the common law of Aotearoa New Zealand.54 The Loasby approach was also largely adopted by the Court of Appeal in R v Iti in 2008.55 This case considered whether a defence based on tikanga was available to the defendant, Mr Iti, who had been charged with the unlawful discharge of a firearm. In finding that the defence was not available, the Court found that the tikanga claimed by the defendant could not be reconciled with the relevant statutory policy.56

Modern approach to custom: Loasby overruled

• 5.33 In Ellis v R, the Supreme Court gave considerable attention to the relationship between tikanga and the common law.57 The Court was addressing whether, and to what extent, tikanga should inform the law as it relates to rights of appeal in respect of a deceased person. The case was not expressly concerned with either property or general custom. 58 Nonetheless, a majority of the Court overruled Loasby.59
• 5.34 Glazebrook J, with whom Winkelmann CJ and Williams J agreed,60 considered that the Loasby incorporation rules are “colonial relics with no place in modern Aotearoa/New Zealand”.61 Several cases pre-dating Ellis had cast doubt on the need for “colonial incorporation tests”.62 There is now no good reason, Glazebrook J considered, to retain the incorporation rules in any context given their incompatibility with the nature of tikanga and the underlying premise of the superiority and dominance of Western law.63 The majority on this point did not reformulate a test for the incorporation of custom into the common law or indeed indicate whether in their view a test or framework would be appropriate at all.64 The minority on this point considered that the Loasby test should not have been overruled in Ellis, where no counsel argued it should be overruled and where the Court was not in a position to articulate what would replace it.65

⁵³ Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC) at 215.

⁵⁴ Proprietors of Parininihi ki Waitotara Block v Ngaruahine Iwi Authority [2004] 2 NZLR 201 (HC) at [18].

⁵⁵ R v Iti [2007] NZCA 119, [2008] 1 NZLR 587.

⁵⁶ R v Iti [2007] NZCA 119, [2008] 1 NZLR 587 at [50].

⁵⁷ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239.

⁵⁸ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 is addressed below in more detail.

59. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [113]–[115] per Glazebrook J, and Winkelmann CJ and Williams J in agreement at [177] and [260] respectively.

⁶⁰ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [177] and [260].

⁶¹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [113].

62. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [114]: “[The Supreme Court] in Trans-Tasman said that the tests set out in Loasby were not necessary on the approach taken by this Court in Takamore (where tikanga was seen as a relevant factor but not controlling).” In addition, Glazebrook J cited at fn 133 her own suggestion in the earlier Takamore (CA) decision at [254] that a “more modern” approach could be taken that did not rely on strict colonial rules, and Williams J recorded his view at [260] of Ellis v R that the Supreme Court in Takamore had implicitly abandoned the Loasby test.

⁶³ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [113]–[115].

64. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [116] per Glazebrook J, [183] per Winkelmann CJ and [261] per Williams J.

⁶⁵ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at fn 279.

• 5.35 The implications of the cases discussed above and how the law might develop in the absence of the Loasby criteria are discussed in Chapter 8. As that discussion makes clear, some aspects of tikanga will continue to be incorporated into the common law and given effect to through the customary law doctrine.
• 5.36 However, the courts have also re-examined the place of tikanga in the common law. Further decisions reposition tikanga from being recognisable to the common law through the customary law doctrine to:

(a) providing a source of values that can inform the common law;66 and

(b) recognising tikanga as being a separate source of law.67

• 5.37 In advance of our Chapter 8 discussion, we next review case law relating to each of these categories.

FURTHER DEVELOPMENTS: TIKANGA VALUES AND TIKANGA AS LAW

Tikanga values

Takamore v Clarke

• 5.38 The Supreme Court’s 2012 decision in Takamore v Clarke marked a significant step in the relationship between tikanga and the common law.68 This case addressed the place of tikanga in the law relating to burial. None of the three Supreme Court judgments applied the Loasby test, preferring instead to recognise tikanga alongside other important values as a “relevant factor in deciding on the burial place of a person with Māori whakapapa”. 69 Weighing these values, the Court nevertheless found that the decision for burial lay with the deceased’s wife and not his whānau.70
• 5.39 The significance of this decision should not be underestimated. It is one of the first cases that recognises tikanga values as having legal significance within the common law.71 In Part One of this paper, we demonstrate that tikanga is a complex system of values, norms and rules that exists naturally within mātauranga Māori. Until Takamore, outside of statutory incorporation, the common law did not directly engage with tikanga values. Engagement continued to be framed by reference to the Loasby test or the rules applying to recognition of property interests. By contrast, Takamore allowed the common law to look beyond customary practices and their “reasonableness” to the broader normative and legal significance of tikanga values.

⁶⁶ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94].

⁶⁷ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [111] per Glazebrook J.

68. Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733. See the analysis in Carwyn Jones “Lost from sight: developing recognition of Māori law in Aotearoa New Zealand” (2021) 1(2) Legalities 162.
69. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [95], citing Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [164] per Tipping, McGrath and Blanchard JJ.

⁷⁰ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [169] per Tipping, McGrath and Blanchard JJ.

71. Courts of specialist jurisdiction such as Te Kooti Whenua Māori | Māori Land Court and Te Kōti Taiao | Environment Court have operated within legislative frameworks that facilitate the incorporation of tikanga into their operation and decisions since the early 90s. Although significant, those jurisdictions exist within their relevant legislative frameworks, while Takamore was decided in the context of the common law outright.

• 5.40 The Supreme Court found that Mr Takamore’s widow should have the power to decide where he would be buried.72 However, the majority of Tipping, McGrath and Blanchard JJ considered that tikanga was a relevant consideration for the executor when making the burial decision.73 The majority judgment did not attempt to apply the Loasby criteria for recognition of custom, holding instead that the values of tikanga and corresponding customary practice were a relevant consideration for the person who has the common law right and duty to dispose of a deceased’s body.74
• 5.41 Elias CJ took a different approach to the majority, focusing on the resolution of competing values.75 Her Honour made the following points in relation to tikanga values and the common law:

(a) Values and cultural precepts important in Aotearoa New Zealand society must be weighed in the common law method according to their materiality in the particular case.76

(b) Māori custom according to tikanga is part of the values of the Aotearoa New Zealand common law.77

(c) What constitutes Māori custom is a question of fact for expert evidence or reference to the Māori Appellate Court in the appropriate case.78

(d) A court engaged in a process of identifying custom is “not engaged in the same process of interpretation or law creation, as is its responsibility in stating the common law”.79

(e) The law cannot give effect to customs or values that are contrary to statute or to fundamental principles and policies of the law.80

(f) The reasonableness of the tikanga is not determined by an observed aspect (for example, forcible removal) but rather by reference to the underlying values that define the custom.81

Post-Takamore

• 5.42 Since Takamore, the courts have begun to consider tikanga values where appropriate to do so in the circumstances of the case. For example, in Sweeney v The Prison Manager, Spring Hill Corrections Facility, the High Court found that revoking the plaintiff’s prison

72. Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [12] per Elias CJ, [165] per Tipping, McGrath and Blanchard JJ and [175] per William Young J.

⁷³ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [156] per Tipping, McGrath and Blanchard JJ.

⁷⁴ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [112]–[119] and [152].

⁷⁵ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [92].

⁷⁶ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94].

77. Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94], citing Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC) at 807.

⁷⁸ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [95].

⁷⁹ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [95].

⁸⁰ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [95].

⁸¹ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [96].

visitor’s pass was unlawful.82 The plaintiff was Māori and worked as an addictions counsellor. The Court held that a declaration was necessary in order to uphold the plaintiff’s mana (authority, esteem) and vindicate his rights.83 The Court referred to Takamore v Clarke and Trans-Tasman Resources to support the view that, where tikanga is “material” to a case, “the courts can, and may have an obligation to recognise and uphold the values of tikanga Māori in applying the law of judicial review and granting remedies”.84

• 5.43 The Court of Appeal has commented on how tikanga may inform the principles of equity and the nature of fiduciary duties in the context of Māori land administration and ownership.85 In Kusabs v Staite, a rangatira for two hapū was acting as a trustee on separate trusts that represented each hapū, creating a potential conflict of interest. The Court noted that Māori land is a communal asset, with associated rights and obligations that arise from whanaungatanga.86 Because whanaungatanga is complex, most owners have multiple interests in blocks affiliated to multiple hapū. Trustees are appointed by owners and are generally leaders within their communities. These trustees are also likely to have complex whanaungatanga connections and consequently may be trustees for multiple blocks of Māori land.87 The Court went on to say:88

If fiduciary duties are applied to Māori land administration without due regard to whanaungatanga, the former may frustrate the positive expression of the latter. This would be contrary to the underlying values of equity which, after all, developed as a response to the rigid formalism of the common law courts.

• 5.44 The Court was satisfied that “[b]earing the principles of equity and tikanga” in mind, the interests of a rangatira in both of the trusts and his position as trustee for both trusts could not give rise to a real possibility of conflict on the facts.89

Ellis v R

• 5.45 In Ellis v R, the Supreme Court considered whether tikanga could have any effect on the test for whether an appeal should continue in the event of the appellant’s death. By a majority comprising Glazebrook, O’Regan and Arnold JJ (the “test majority”), the Court did not consider that tikanga was material to the development of the common law rule in issue.90

⁸² Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181, [2021] 2 NZLR 27.

⁸³ Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181, [2021] 2 NZLR 27 at [1].

⁸⁴ Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181, [2021] 2 NZLR 27 at [75].

⁸⁵ Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [119]–[122].

⁸⁶ Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [119].

⁸⁷ Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [123].

⁸⁸ Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [124].

⁸⁹ Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [134].

90. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [11] and at [142]–[145] per Glazebrook J and [315] per O’Regan and Arnold JJ.

• 5.46 The Court, however, expressed the unanimous view that tikanga:

(a) has been and will continue to be recognised in the development of the common law of Aotearoa New Zealand in cases where it is relevant;91 and

(b) forms part of state law as a result of being incorporated into statutes and regulations.92

• 5.47 A different majority comprising Winkelmann CJ and Glazebrook and Williams JJ (the “tikanga majority”) recognised that tikanga was the first law of Aotearoa New Zealand and that it continues to shape and regulate the lives of Māori.93 In their separate reasons, they each acknowledge the large and increasing presence of tikanga in state law. The “tikanga minority” (comprising O’Regan and Arnold JJ) also acknowledged that “fundamental concepts of the common law have been adapted so as to give effect to core values of tikanga in particular contexts”.94
• 5.48 Each of the judges in the tikanga majority identified potential principles for future engagement between tikanga and the common law. The majority held in relation to tikanga that:

(a) the Loasby criteria should no longer apply;95

(b) tikanga is a complete system with fundamental concepts that are intertwined and exist as an interconnected matrix;96

(c) the appropriate method for engagement must depend on the circumstances of the case;97

(d) the relationship between tikanga and the common law will evolve contextually and as required on a case-by-case basis;98

(e) tikanga values may clash with other values in society, existing principles or existing common law, and this conflict will need to be worked through;99 and

91. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [108]–[110] per Glazebrook J, [171]–[174] per Winkelmann CJ, [257]–[259] per Williams J and [279] per O’Regan and Arnold JJ.
92. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [98]–[102] per Glazebrook J, [175]–[176] per Winkelmann CJ, [257] per Williams J and [280] per O’Regan and Arnold JJ.
93. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [107] and [110] per Glazebrook J, [168], [169] and [172] per Winkelmann CJ and [272] per Williams J.
94. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [280] per O’Regan and Arnold JJ, referring to legislation identifying Te Urewera as a legal entity and the Whanganui River as a legal person.
95. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [21] and [113]–[116] per Glazebrook J, [177] per Winkelmann CJ and [260] per Williams J. The minority on this point (O’Regan and Arnold JJ) were critical of the majority noting in fn 297 that “the test set out in the incorporation cases should not be overruled without the Court being in a position to articulate what replaces it, especially as no counsel argued that it should be overruled”.

⁹⁶ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [180] per Winkelmann CJ.

⁹⁷ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [121]–[125] per Glazebrook J, [181] per Winkelmann CJ and

[273] per Williams J.

98. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [116], [119] and [127] per Glazebrook J, [183] per Winkelmann CJ and [261] per Williams J.
99. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [119] per Glazebrook J, [182] per Winkelmann CJ and [266] per Williams J: “unambiguous statutory language will be required to exclude tikanga”.

(f) the courts must not exceed their function when engaging with tikanga and care must be taken not to impair the operation of tikanga as a system of law and custom in its own right.100

• 5.49 As noted above, the test majority did not consider it necessary to consider tikanga when assessing whether to allow an appeal to continue after the death of the deceased. Given that two members of this majority did not consider the present case to be a suitable case to make pronouncements of a general nature about the incorporation or application of tikanga in Aotearoa New Zealand’s common law, that is not surprising.
• 5.50 Significantly, Mr Ellis was not Māori, nor were any of the alleged victims.101 As Winkelmann CJ put it, this meant that the case raised for consideration “the place of tikanga in the common law in a particularly stark way”.102 Until Ellis, most of the cases that engaged with tikanga had what might be described as a Māori element in that Māori rights or interests were engaged in some way.103 These factors ultimately colour the court’s reasoning in each case and impose factual limitations on the broader impact of the court’s analysis. Ellis had none of these limitations and so the decision is particularly relevant for considering how tikanga might infuse the development of the common law for everyone.
• 5.51 The judges were consistent in their views that tikanga remains a coherent and distinct system grounded in its own cultural context.104 To that end, the tikanga majority judges were wary of the common law declaring tikanga as opposed to applying it.105 Williams J phrased his concern in this way:106

I simply wish to acknowledge that tikanga Māori continues to operate as law in the lives of Māori people and communities today; and that the risks to tikanga’s integrity of dialogue with the common law are real enough and need to [be] mitigated.

• 5.52 In terms of how a court ascertains tikanga, the tikanga majority judges seemed to move away from the current approach of treating proof of tikanga as a question of evidence. Williams J said he was “somewhat uncomfortable” with its application to indigenous law, noting that there are multiple techniques available to assist courts to understand and apply tikanga.107

100. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [22] per the majority (Winkelmann CJ, Glazebrook and Williams JJ).

¹⁰¹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [160].

¹⁰² Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [160].

103. Although, the beneficiaries of these were not always Māori. See Sarah Down and David V Williams “Building the foundations of tikanga jurisprudence” (2022) 29 Canterbury Law Review 27 at 35.
104. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [171] and [180]–[181] per Winkelmann CJ and [256] per Williams J.

¹⁰⁵ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [180]–[181] per Winkelmann CJ and [271] per Williams J.

¹⁰⁶ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [272] per Williams J.

107. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [273] per Williams J. Glazebrook J also noted the various methods available to a court at [125].

Tikanga as law

• 5.53 The common law has further recognised tikanga as law within Māori society.108 In this category of case, tikanga is being recognised as operating as law in its own right without regard to state law rules for incorporation. However, declarations made by the court about tikanga may have secondary legal consequences within state law. The High Court decision in Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) provides an example.
• 5.54 In Ngāti Whātua (No 4), the High Court was tasked with making declarations on the scope and content of mana whenua (authority in respect of land) between different Māori groups. This meant that the legal issues concerned tikanga operating within te ao Māori, rather than tikanga as either a basis for or direct influence on the common law. In relation to tikanga, Palmer J accepted that:

(a) the law that accompanied Māori to Aotearoa New Zealand was constituted by tikanga; 109

(b) tikanga governs and binds iwi and hapū and is developed over time by iwi and hapū;110

(c) tikanga is a “free-standing” legal framework recognised by state law;111 and

(d) tikanga does not, however, bind the Crown or directly modify the common law or statutory law that bind the Crown.112

• 5.55 Ngāti Whātua (No 4) built on earlier High Court decisions. In Ngāti Whātua Ōrākei v Attorney-General (No 1), Palmer J said that tikanga is “law proved as a matter of fact”.113 In Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2), Palmer J urged caution when “finding” tikanga as fact because tikanga is created by the relevant hapū or iwi through practice, tradition and deliberation.114 A court’s recognition of tikanga is only a “snapshot at a certain point”, which cannot change the tikanga determined by hapū or iwi exercising their rangatiratanga.115
• 5.56 Ellis v R, which was delivered six months after Ngāti Whātua (No 4), did not expressly reference Palmer J’s decision.116 Even so, the Court made various statements that indicated support for the recognition of tikanga as law within Māori society on its own terms.117 A majority in Ellis recognised that “tikanga was the first law of Aotearoa/New

108. See Ngāti Whātua Ōrākei (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [355] (a “free-standing legal framework”); and see Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [169], fn 282 per William Young and France JJ, agreed to by Glazebrook J at [237], Williams J at [296]–[297] and Winkelmann CJ at [332].

¹⁰⁹ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [355].

¹¹⁰ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [355].

¹¹¹ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [355].

¹¹² Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [570].

113. Ngāti Whātua Ōrākei Trust v Attorney-General (No 1) [2020] NZHC 3120 at [36]. Palmer J was echoing similar comments made by Elias CJ in Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [95].

¹¹⁴ Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [58].

¹¹⁵ Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [58].

116. Other than at fn 185 per Winkelmann CJ as an authority supporting a tikanga-consistent approach to statutory interpretation.
117. Sarah Down and David V Williams “Building the foundations of tikanga jurisprudence” (2022) 29 Canterbury Law Review 27 at 37.

Zealand and that it continues to shape and regulate the lives of Māori”.118 As Glazebrook J said:119

... tikanga will continue to be applied by Māori and will continue to develop, independent of its place as part of the common law or as contained in legislation and policy. In this sense, tikanga is a separate or third source of law.

• 5.57 The Supreme Court’s 2022 decision in Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd illustrates how a tikanga framework can expand to address novel issues.120 In that case, Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal (the Waitangi Tribunal) left open the prospect of resumption of lands in favour of an iwi who were not traditional mana whenua (Ngāti Kahungunu ki Wairarapa).121 The High Court held this to be contrary to tikanga based on tikanga evidence given before the Waitangi Tribunal about who were the mana whenua, namely Raukawa.122 Raukawa’s claim to mana whenua was based on whakapapa to the whenua, usually the strongest basis for exercising mana (authority, responsibilities) in respect of whenua.123 However, the Supreme Court (Williams J writing for the majority comprising also Winkelmann CJ and Glazebrook J) reversed the High Court’s decision, finding that the Tribunal did not err.124 Instead, the Court emphasised that context is everything and it is “dangerous to apply tikanga principles, even important ones, as if they are rules that exclude context”.125 Williams J for the majority commented that:126

... tikanga is a principles based system of law that is highly sensitive to context and sceptical of unbending rules.

• 5.58 Applying a contextual approach, his Honour said that, while mana whenua is important and not lightly overridden,127 “even within its own tikanga framework, mana whenua is neither immutable nor incapable of adaption to new circumstances”.128 Williams J also referred to the concept of tuku whenua involving transfers of land for many purposes, including compensation for wrongdoing, recognition of service or building alliances.129
• 5.59 Williams J observed that the Waitangi Tribunal did not refuse to apply tikanga. Rather, it concluded that mana whenua need not be the controlling tikanga because other tikanga principles were in play, namely hara (a wrong), utu (reciprocity), ea (a settled state) and mana. He referred to the need for the Crown to restore the mana of Ngāti Kahungunu ki

118. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [22] and at [107] and [110] per Glazebrook J, [168], [169] and [172] per Winkelmann CJ and [272] per Williams J.

¹¹⁹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [111].

¹²⁰ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142.

121. Resumption of land refers to a remedy that the Waitangi Tribunal may order. The Tribunal can make a binding recommendation to the Crown that it purchase the land and return it to Māori ownership as a way of settling a claim.

¹²² Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142 per Cooke J at [147(d)].

¹²³ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142 per Cooke J at [105]–[107].

124. The decision went on appeal directly from the High Court to the Supreme Court: Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2021] NZSC 134; Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2021] NZSC 183.

¹²⁵ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [74].

¹²⁶ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [76].

¹²⁷ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [75].

¹²⁸ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [76].

¹²⁹ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [81].

Wairarapa for the Crown’s hara or wrongdoing to them in rendering them landless.130 Relevant context also included the allocation of Crown land belonging to Ngāti Kahungunu ki Wairarapa (non-mana whenua), that Raukawa had already settled their claims and that Ngāti Kahungunu ki Wairarapa had a well-founded claim.131 For these reasons, the majority concluded that the High Court was wrong to give primacy to mana whenua, noting that, while an important principle, there were other relevant principles.

CONCLUSION

• 5.60 In this chapter, we have reviewed how the common law addresses tikanga. Doing so has shown how the courts have turned from their original reliance on rules of incorporation governing the recognition of tikanga as customary law towards a repositioning of tikanga. The way is open to recognition of tikanga by itself, both providing a source of values informative of the common law and, further, simply engaging with tikanga directly upon its own terms, unmediated by state law tests or contending values. This need not be confined to Māori (although tikanga continues to determine Māori relational interests, and courts may at times be asked to adjudicate). In the following chapter, we move to considering how a similar shift in the ways that tikanga has been acknowledged by state law can be seen in a legislative context.

¹³⁰ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [77].

¹³¹ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [82].

CHAPTER 6

Tikanga and statute law

INTRODUCTION

• 6.1 This chapter discusses the different approaches taken by the state to recognition of tikanga in legislation. While the interaction between common law and tikanga has attracted considerable attention, statutes and statutory interpretation have always been the primary mechanism by which state law engages with tikanga. In addition, the application of tikanga within the common law can be modified by statute.1 New statutes must be drafted with consideration of whether the statute might affect tikanga practices and must be consistent with tikanga “as far as practicable”.2
• 6.2 This chapter identifies key themes in the engagement between tikanga and legislation. We have divided our discussion of themes into two time periods — the period before 1975 and the period after 1975. We have found it helpful to approach our analysis in this way because of the shift in societal and government attitudes towards Māori generally that was occurring from around 1975.3 This was reflected in both government policy and legislation.

ENGAGEMENT WITH TIKANGA IN STATUTES BEFORE 1975

• 6.3 Early statutes had to acknowledge and consider tikanga by necessity.4 Until around 1860, Māori outnumbered the non-Māori settler population,5 and tikanga was the only system

1. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [98]. Glazebrook J notes that tikanga itself cannot be modified by statute, only its operation within the common law.

² Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at [3.4] and [5.3].

3. Caren Fox “Ko te mana te utu: narratives of sovereignty, law and tribal citizenship in the Pōtikirua ki Te Toka-a-Taiau district” (PhD Thesis, Te Whare Wānanga o Awanuiārangi, 2023) at 53.
4. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 9. See also Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree: Phase One — Strengthening the Ability for Māori Law to Become a Firm Foundational Component of a Legal Education in Aotearoa New Zealand (Ngā Pae o te Māramatanga, supported by the Michael and Suzanne Borrin Foundation, August 2020) at 27–28; Caren Fox “Ko te mana te utu: narratives of

sovereignty, law and tribal citizenship in the Pōtikirua ki Te Toka-a-Taiau district” (PhD Thesis, Te Whare Wānanga o Awanuiārangi, 2023) at 49.

5. Te Ara: The Encyclopaedia of New Zealand “Māori and European population numbers, 1838–1901” (4 October 2021) Nga korero a ipurangi o Aotearoa | New Zealand History <nzhistory.govt.nz>.

of law that operated in most of Aotearoa New Zealand. In the Muriwhenua report, Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal said:6

It was natural ... [for Māori] to assume that their own laws and standards would continue without let or hindrance. Indeed, they knew no other law or standards ... Moreover, throughout the crucial period from first contact to 1865, Māori were by far the majority population in this district. It was their way that prevailed, and it must have seemed to them that their arrangements with Europeans would be determined according to no other laws and customs than their own.

• 6.4 Early legislators made attempts to engage with tikanga, although their approaches were varied.7 As Te Aka Matua o te Ture | Law Commission (the Commission) observed in Māori Custom and Values in New Zealand Law, this was in part a result of the colonial government struggling to decide whether “English law should apply equally to everyone in New Zealand or whether exceptions should be made in favour of Māori and taking into account Māori customs”.8 At least initially, the sentiment of the colonial government towards Māori custom seemed favourable. An account from Lord Russell to Governor Hobson was certainly to that effect:9

[The Māori people] have established by their own customs a division and appropriation of the soil ... with usages having the character and authority of law ... it will of course be the duty of the protectors to make themselves conversant with these native customs ...

• 6.5 Some officials appeared satisfied that, with the exception of “barbarous customs”, Māori should be exempted from the application of any British law in relation to matters between Māori:10

... there was no reason why the aborigines should not be exempted from any responsibility to English law or to English courts of justice as far as respects their relations and dealings with each other.

6. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997) at 2; see also Robert Joseph “Colonial biculturalism? The recognition & denial of Māori custom in the colonial & post-colonial legal system of Aotearoa/New Zealand” (paper prepared for Te Mātāhauariki Research Institute, Te Whare Wananga o Waikato | University of Waikato FRST Project, 1998) at 2; Ani Mikaere Colonising Myths — Māori Realities: He Rukuruku Whakaaro (Huia Publishers, Wellington, 2011) at 258.
7. Various commentators have written about the attitudes of early government in this period. See Alex Frame “Colonising attitudes towards Māori custom” [1981] New Zealand Law Journal 105 at 105–106; Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 18–26; Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree: Phase One — Strengthening the Ability for Māori Law to Become a Firm Foundational Component of a Legal Education in Aotearoa New Zealand (Ngā Pae o te Māramatanga, supported by the Michael and Suzanne Borrin Foundation, August 2020) at 27–29.

⁸ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 18.

9. Dispatch from Lord John Russell to Governor Hobson, 9 December 1840, in “Correspondence respecting the colonization of New Zealand” Great Britain Parliamentary Papers relating to New Zealand, No 17 at 27–28; see also Alex Frame “Colonising attitudes towards Māori custom” [1981] New Zealand Law Journal 105 at 105–106.
10. Instructions from James Stephen to Willoughby Shortland, as cited in Shaunnagh Dorsett “Sworn on the dirt of graves: sovereignty, jurisdiction and the judicial abrogation of ‘barbarous’ customs in New Zealand in the 1840s” (2009) 30 The Journal of Legal History 175 at 179.

• 6.6 However, as Professor Emeritus David V Williams captures in his research report on early Crown policy for the Waitangi Tribunal, government officials were also concerned with the assimilation of Māori into other ways of life.11 After this early period of statutory engagement, general recognition of tikanga declined over time with the exception of land tenure and the work of the Native Land Court.12
• 6.7 The pre-1975 statutes therefore represented an amalgamation of different attitudes towards Māori custom.13 An analysis of statutes over this period reveals a variety of methods by which they engaged with tikanga or “customs”:

(a) Providing for matters to be determined according to “native customs” to varying degrees.

(b) Recognising “native rights” to certain resources.

(c) Attempting to recognise specific customs through prescriptive drafting.

(d) Establishing processes that enabled tikanga to operate.

(e) Establishing geographic areas where Māori custom operated in some limited form with respect to matters between Māori.

(f) Providing that a particular custom is of no legal effect.

(g) Ignoring tikanga.

• 6.8 Below, we expand on each of these methods and discuss some examples.

Providing for matters to be determined according to “native customs”

• 6.9 The most common way in which pre-1975 statutes attempted to recognise tikanga was to provide that matters were to be determined, to varying degrees, according to “native customs”.14 Naturally, this led to different judicial interpretations of what native customs were. As the Commission has previously described the ensuing process, it was an “assimilation by recognition followed by extinguishment through re-interpretation”.15 For example, referring to the Native Land Court’s investigation of titles, the Commission said:16

The Court’s investigation of titles to land was expressed to be in accordance with Māori custom. However, it awarded titles only to individuals, and at one stage awarded title for land areas less than 5,000 acres to 10 owners or less.

11. See the discussion in David V Williams Crown Policy Affecting Māori Knowledge Systems and Cultural Practices (Waitangi Tribunal Publications, Wai 262 #K003, 2001) at ch 1. Williams cites Alan Ward A Show of Justice: Racial ‘amalgamation’ in nineteenth century New Zealand (Auckland University Press, Auckland, 1974), which also includes a critical analysis of early government policy.
12. Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree: Phase One — Strengthening the Ability for Māori Law to Become a Firm Foundational Component of a Legal Education in Aotearoa New Zealand (Ngā Pae o te Māramatanga, supported by the Michael and Suzanne Borrin Foundation, August 2020) at 27–28.

¹³ See also the discussion in Te Aka Matua o te Ture | Law Commission Mataitai: Nga tikanga Maori me te Tiriti o Waitangi

| The Treaty of Waitangi and Maori Fisheries (NZLC PP9, 1989) at 130–131.

14. “Custom” being the dominant way that legislation referred to tikanga. Several different usages occur including “Native customs”, “Native customs and usages” and “Māori custom”.

¹⁵ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 25.

¹⁶ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 25.

• 6.10 The Commission’s attention to the Native Land Court reflects the numerous references to custom in native lands statutes in the nineteenth and early twentieth centuries.17 To exemplify the process of recognition and subsequent interpretation, the Native Lands Act 1865 and the Papakura decision are typical.18 The Act gave the Native Land Court jurisdiction to inquire (upon application) into who should succeed to Māori land derived from a Crown grant on intestacy according to English law “as nearly as it can be reconciled with Native custom”.19 In the Papakura decision, the Native Land Court interpreted this provision to mean that English law should apply except where “strict adherence to English rules of law would be very repugnant to native ideas and customs”.20 The Court held that the provision meant all issue of the deceased would inherit land in equal shares.21
• 6.11 Another example in the succession context is the Native Succession Act 1881. This Act allowed Māori to apply to the Native Land Court to “inquire and ascertain who ought to succeed” to Māori land or land derived from a Crown grant.22 In respect of Māori land, the Native Land Court was to be “guided by Native custom or usage”. In respect of land derived from a Crown grant, the Court was to be “guided by the law of New Zealand”. Te Kōti Matua | High Court (the High Court) commented on this statute in the 1890 decision of Pahoro v Cuff:23

By “The Native Succession Act, 1881,” as amended in 1882, the Native Land Court is required, in granting succession orders respecting lands held under Crown grant, to guide itself by the law of New Zealand as nearly as it can be reconciled with Native custom ... as this Court has no cognisance of Native custom except through references to the Native Land Court, it cannot overrule a decision of the Native Land Court on any question within the jurisdiction of that Court which requires for its determination a knowledge of Native custom. The amending Act of 1882 seems indeed to make Native custom paramount in questions of succession, even to lands held by Natives under Crown grant. If the law of the colony respecting descents and successions cannot be reconciled with Native custom, the latter it would seem must prevail.

• 6.12 The High Court’s interpretation is notable in that it deferred to the Native Land Court’s understanding of native custom where it could not be reconciled with “the law of the colony”.

Recognising “native rights” to certain resources

• 6.13 Another approach taken in legislation was to recognise some existing customary rights to resources. This method is similar to the first approach of providing for matters to be determined according to custom. However, the difference is that it purports to recognise pre-existing rights rather than providing a legislative basis for recognition of customs.

17. A few examples include the Native Lands Acts 1862 and 1865, Native Succession Act 1881, Native Land Court Act 1894, Native Lands Act 1909 and the Native Lands Act 1931. These are some of the major Acts, but numerous examples can be found in Acts passed every year.

¹⁸ “Papakura — claim of succession” (12 April 1867) New Zealand Gazette 19.

¹⁹ Native Lands Act 1865, s 30.

²⁰ “Papakura — claim of succession” (12 April 1867) New Zealand Gazette 19 at 19–20.

²¹ “Papakura — claim of succession” (12 April 1867) New Zealand Gazette 19 at 19.

²² Native Succession Act 1881, s 3.

²³ Pahoro v Cuff (1890) 8 NZLR 751 (HC) at 756.

• 6.14 For example, customary fishing rights were recognised in the Fish Protection Act 1877. 24 It gave the Governor in Council power to create fishing districts and to regulate fishing within those districts, including the power to grant exclusive rights to a fishery.25 Section 8 of the Act provided:26

Nothing in this Act contained shall be deemed to repeal, alter, or affect any of the provisions of the Treaty of Waitangi, or to take away, annul, or abridge any of the rights of the aboriginal natives to any fishery secured to them thereunder.

• 6.15 Provisions of this type did not necessarily mean affirmation of customary rights. Commenting on a similar provision in the Fisheries Act 1908, Stout CJ held that the provision was only a saving provision for rights that existed separately from the Act. He said:27

There is no attempt in the Fisheries Act, 1908, to give rights to non-Maoris not given to Maoris. All have the right to fish in the sea and in tidal rivers who obey the regulations and restrictions of the statute. This statute has not given, and no New Zealand statute gives, any communal or individual rights of fishery, territorial or extra-territorial, in the sea or tidal rivers ... It may be, to put the case the strongest possible way for the Maoris, that the Treaty of Waitangi meant to give such an exclusive right to the Maoris, but if it meant to do so no legislation has been passed conferring the right ...

• 6.16 This case was considered good law until the case of Te Weehi v Regional Fisheries Officer

in 1986.28

Attempting to recognise specific customs through prescriptive drafting

• 6.17 A less common method of recognising tikanga in statute was attempting to recognise specific customs through prescriptive drafting. Rather than provide for “native customs” more generally, these statutes attempted to recognise a particular custom. An early example of this is seen in the Native Exemption Ordinance 1844. The Ordinance’s Preamble indicates an intention to gradually introduce English laws and customs:29

... it is greatly to be desired that the whole aboriginal native population of these Islands, in their relations and dealings amongst themselves, be brought to yield a ready obedience to the laws and customs of England: And whereas this end may more speedily and peaceably be attained by the gradual than by the immediate and indiscriminate enforcement of the said laws, so that in course of time, the force of ancient usages being weakened and the nature and administration of our laws being understood ...

• 6.18 To achieve this gradual introduction, the Ordinance created exemptions from the “procedure and nature of the punishment” for several crimes. One of these exemptions was that Māori who were convicted of theft could pay up to four times the value of the

24. The Commission has previously noted that the Act is not entirely clear. See Te Aka Matua o te Ture | Law Commission Mataitai: Nga tikanga Maori me te Tiriti o Waitangi | The Treaty of Waitangi and Maori Fisheries (NZLC PP9, 1989) at 146.

²⁵ Fish Protection Act 1877, ss 3–5.

²⁶ Fish Protection Act 1877, s 8.

27. Waipapakura v Hempton [1914] NZGazLawRp 141; (1914) 33 NZLR 1065 at 1071–1072. See the discussion in Te Aka Matua o te Ture | Law Commission Mataitai: Nga tikanga Maori me te Tiriti o Waitangi | The Treaty of Waitangi and Maori Fisheries (NZLC PP9, 1989) at 55–56.
28. Te Aka Matua o te Ture | Law Commission Mataitai: Nga tikanga Maori me te Tiriti o Waitangi | The Treaty of Waitangi and Maori Fisheries (NZLC PP9, 1989) at 56; Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680 (HC) at 692–693.

²⁹ Native Exemption Ordinance 1844, Preamble.

goods instead of facing punishment.30 This has been described as an “obvious adaptation of the Māori customary institution of muru”.31

Establishing processes that enabled tikanga to operate

• 6.19 Another method is including processes in legislation that enable tikanga to operate. There are early examples of this approach, although it has become more popular since 1975.32
• 6.20 An early example that has received mixed criticism is the Resident Magistrates Courts Ordinance 1846.33 This Ordinance allowed two Native Assessors to sit with any magistrate in civil cases.34 The Ordinance went further, giving these assessors the power to “hear and determine summarily all claims and demands whatsoever of a civil nature arising between persons of the Native race”.35 Further, the assessors were able to determine the admissibility of evidence.36 This was all with the view to providing for the “adaptation of law to the circumstances of both races”.37
• 6.21 The role of the Native Assessor was continued in the Resident Magistrates Act 1867 and was not abolished until 1893.38 Commentators have noted the merits of the Native Assessor role, with Dr Robert Joseph noting in particular:39

For its time, the Resident Magistrates system with Māori Assessors was perceived as a successful initiative. The critical factor contributing its success was direct involvement of local Māori leadership, adequate consultation with the local people about what laws would apply, and what role the chiefs should play in their enforcement.

• 6.22 On the other hand, some commentators have noted the way in which successive Acts related to resident magistrates encouraged Māori to assimilate into the new court system.40
• 6.23 Another example is the Native Circuit Courts Act 1858. This Act provided for the establishment of districts and of Native Circuit Courts within those districts.41 These courts had both criminal and civil jurisdictions. Native Assessors could sit with magistrates on

³⁰ Native Exemption Ordinance 1844, s 7.

31. Robert Joseph “Re-creating legal space for the first law of Aotearoa-New Zealand” (2009) 17 Taumauri | Waikato Law Review 74 at 77–78. At fn 28, Joseph describes muru as “a ritualised compensatory institution where an offended party was allowed to take possessions owned by the offender party. The institution was an effective method for avoiding violent confrontations.”
32. See for example the Part 3A mediation process in Te Ture Whenua Maori Act 1993 or the institution of the Family Group Conference established in the Children, Young Persons, and Their Families Act 1989.

³³ Other examples include the Native Districts Regulation Act 1878 and the Native Circuit Courts Act 1858.

³⁴ Resident Magistrates Courts Ordinance 1846, s 19.

³⁵ Resident Magistrates Courts Ordinance 1846, s 19.

³⁶ Resident Magistrates Courts Ordinance 1846, s 21.

³⁷ Resident Magistrates Courts Ordinance 1846, Preamble.

³⁸ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 20.

39. Robert Joseph “Re-creating legal space for the first law of Aotearoa-New Zealand” (2009) 17 Taumauri | Waikato Law Review 74 at 78. See also Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 20.
40. Both David V Williams and Mark Hickford have argued that the role of the Native Assessor encouraged Māori to assimilate into the court system. See David V Williams Crown Policy Affecting Māori Knowledge Systems and Cultural Practices (Waitangi Tribunal Publications, Wai 262 #K003, 2001) at 20–21.

⁴¹ Native Circuit Courts Act 1858, ss 1 and 2.

these courts. Alternatively, two or more Native Assessors could sit together as a court with all the powers and functions of a Native Circuit Court.42

Establishing geographic areas where Māori custom operated in some limited form

• 6.24 Another common approach in early statutes was to establish geographic areas where Māori customs operated in some limited form. An approach to recognising custom that relied on geographic boundaries was a more workable approach when Māori still retained well-established tribal bases under customary ownership. Where this is the case in overseas jurisdictions, a geographic approach is still being used.43
• 6.25 The earliest example from Aotearoa New Zealand is found in the New Zealand Constitution Act 1852 (UK).44 It provided for “particular districts” to be set aside where native customs “so far as they are not repugnant to the general principles of humanity” would apply “in all their relations to and dealings with each other”.45 This power was never used, despite calls for districts to be set aside by various Māori movements.46 The Act did not provide for tikanga to govern relationships between Māori and non-Māori in these districts. However, this was the intention when the Act was prepared and approved by Parliament in London in 1846.47 The original version of the Act had a provision stating:48

Within such districts (as may be declared) the laws, customs, and usages of the aboriginal inhabitants, so far as they are not repugnant to the general principles of humanity, shall for the present be maintained.

• 6.26 The Native Committees Act 1883 provided for a similar geographical approach, albeit in a much more limited way. It provided for districts to be created and for the establishment of a “Native Committee” by election for each district.49 The Native Committee had the power to sit as a court of arbitration and determine disputes between “Natives usually resident in the district, where the cause of the dispute has arisen within the district and the matter does not exceed twenty pounds in value”.50 The parties had to agree to be bound by the decision.51

Providing that custom is of no legal effect

• 6.27 Another possible approach is for legislation to expressly provide that a certain custom has no legal effect. There are relatively few examples of this approach.

⁴² Native Circuit Courts Act 1858, s 33.

⁴³ The First Nations reserves in both Canada and the United States are prominent examples.

44. For a comprehensive discussion of the New Zealand Constitution Act 1852 see Robert Joseph ‘The Government of Themselves’: Case Law, Policy and Section 71 of the New Zealand Constitution Act 1852 (Te Mātāhauariki Institute, University of Waikato, Hamilton, 2002).

⁴⁵ New Zealand Constitution Act 1852, s 71.

46. Robert Joseph “Colonial biculturalism? The recognition & denial of Māori custom in the colonial & post-colonial legal system of Aotearoa/New Zealand” (paper prepared for Te Mātāhauariki Research Institute, Te Whare Wananga o Waikato | University of Waikato FRST Project, 1998) at 6.

⁴⁷ Alex Frame “Colonising attitudes towards Māori custom” [1981] New Zealand Law Journal 105 at 106.

⁴⁸ Alex Frame “Colonising attitudes Towards Māori custom” [1981] New Zealand Law Journal 105 at 106.

⁴⁹ Native Committees Act 1883, s 4.

⁵⁰ Native Committees Act 1883, s 11.

⁵¹ Native Committees Act 1883, s 11.

• 6.28 One example is the Adoption Act 1955. The Act provides that adoptions in accordance with Māori custom are of no force and effect.52 The Act is still in force and continues to affect legal recognition of whāngai (raising or adopting children according to tikanga). For example, Te Kōti Pīra | Court of Appeal has held that the Adoption Act precludes a whāngai child from making a claim under the Family Protection Act 1955 unless they have been formally adopted.53
• 6.29 Another example is the Native Land Laws Amendment Act 1895, which amended the principal Act to prevent ōhākī (a customary oral expression of testamentary wishes) from being recognised as a legally valid distribution of property.54

Ignoring tikanga

• 6.30 It may seem unusual to describe ignoring tikanga as a method of engagement. However, in circumstances where there was overlap or similarity between the areas covered by statute and tikanga, an absence of legislative direction to consider tikanga could mean those administering the legislation could not consider tikanga or were less likely to.
• 6.31 An example is the Guardianship Act 1968. Under the Act, the only guardians as of right were the natural birth mother and father of the child.55 Although the Act did not directly mention tikanga or custom, commentators on the Act have suggested that the Act was clearly inconsistent with a Māori world view.56
• 6.32 The Wills Act 2007 provides another example. The Act makes no mention of ōhākī, effectively precluding ōhākī from being a valid testamentary distribution of property by requiring that a will must be in writing.57

Some observations about statutory engagement before 1975

• 6.33 Some overarching observations can be made about the different methods by which statute engaged with tikanga prior to 1975.

52. Adoption Act 1955, s 19. There is an exception in s 19(2) for adoptions made before the commencement of the Native Land Act 1909.
53. Keelan v Peach [2002] NZCA 296; [2003] 1 NZLR 589 (CA) at [43]. However, 2021 amendments to Te Ture Whenua Maori Act 1993 provide that Te Kooti Whenua Māori | Māori Land Court may determine whether someone is a whāngai for the purposes of a claim under the Family Protection Act 1955 that relates to Māori freehold land: see Te Ture Whenua Maori Act 1993, s

115. For a description of whāngai see Te Aka Matua o Te Ture | Law Commission He arotake i te āheinga ki ngā rawa a

te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 134– 135.

54. For a description of ōhākī see Te Aka Matua o Te Ture | Law Commission He arotake I te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 385–386. Section 33 of the Native Land Laws Amendment Act 1895 provided that “No interest in land or personal estate shall pass by any unwritten will or ohaki”. Up until this point, the common law had recognised ōhākī. See the discussion of ōhākī in T Bennion and J Boyd Succession to Maori Land, 1900–52 (Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Rangahaua Whanui series, 1997) at 11.
55. Guardianship Act 1968, s 6. If the parents are not married or not living together as husband and wife, the mother would be the only guardian as of right.
56. See Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 24–25 and Te Aka Matua o Te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 56.
57. See Wills Act 2007, ss 6, 8 and 11. Te Aka Matua o te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 386.

Recognition was sometimes used as a tool for assimilation

• 6.34 Not every mention of custom was clearly designed to assimilate or extinguish custom. Particularly in the areas of Māori land and succession, government did appear to have a willingness to allow custom to continue to operate, albeit as “incorporated custom”.58 However, recognition of tikanga in statute was sometimes used as a tool for assimilation. As Justice Joseph Williams (writing extra-judicially) says:59

... examples of recognition were intended to be points along a journey to jurisdictional amalgamation, rather than dots to be joined to demonstrate continuity of recognition of ongoing custom to the present day.

• 6.35 Other commentators have also argued that the limited recognition of custom early on by the government was largely intended as a temporary or transitional measure.60

Legislative direction was not always followed

• 6.36 Despite various Acts requiring courts to recognise or make determinations according to “native custom”, the cases indicate that this was not always done, particularly in cases outside of the Native Land Court.61 In Willoughby v Pana Waihopi, the Court remarked:62

... Judges have acted on the assumption that they might invoke Native custom to determine the succession to the freehold lands of Maoris ... A body of custom has been recognized and created in that Court which represents the sense of justice of its Judges in dealing with a people in the course of transition from a state of tribal communism to a state in which property may be owned in severalty, or in the shape approaching severalty represented by tenancy in common. Many of the customs set up by that Court must have been founded with but slight regard for the ideas which prevailed in savage times.

• 6.37 On this assessment, the sometimes-strong direction from the legislature to determine matters according to “native custom” was not always followed. Some judges may have seen fit to apply tikanga “by analogy”,63 meaning that they recognised tikanga by analogising it with English legal concepts that they understood. Others created legal rules

58. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 10.
59. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 10.
60. Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 22–23; Alex Frame “Colonising attitudes towards Māori custom” [1981] New Zealand Law Journal 105 at 106; David V Williams Crown Policy Affecting Māori Knowledge Systems and Cultural Practices (Waitangi Tribunal Publications, Wai 262 #K003, 2001) at ch 1.
61. Te Aka Matua o te Ture | Law Commission Mataitai: Nga tikanga Maori me te Tiriti o Waitangi | The Treaty of Waitangi and Maori Fisheries (NZLC PP9, 1989) at 135; Alan Ward A Show of Justice: Racial ‘amalgamation’ in nineteenth century New Zealand (2nd ed, Auckland University Press, Auckland, 1995) at 202 and 231–232 discussing Chief Judge Fenton in particular. For a collection of cases with commentary from the Native Land Court, where custom was regularly applied by judges (albeit as they understood it and for the purposes of extinguishing native title), see Richard Boast The Native

Land Court 1862–1887 (Thomson Reuters, Wellington, 2013); Richard Boast The Native Land Court Volume 2, 1888–1909: A Historical Study, Cases and Commentary (Thomson Reuters, Wellington, 2015); Richard Boast The Native/Māori Land Court Volume 3, 1910–1953: Collectivism, Land Development and the Law (Thomson Reuters, Wellington, 2019).

⁶² Willoughby v Panapa Wahopi [1910] NZGazLawRp 138; (1910) 29 NZLR 1123 at 1149–1150.

63. Te Aka Matua o te Ture | Law Commission Mataitai: Nga tikanga Maori me te Tiriti o Waitangi | The Treaty of Waitangi and Maori Fisheries (NZLC PP9, 1989) at 135.

or “customs” based upon a sense of justice that required them (as they saw it) to help Māori move on from “ideas which prevailed in savage times”.64